Undoing old systems has been a favourite option with politicians when driven by paranoid populism. But dismantling institutions is so easy; reconstruction is so very difficult.
In a hasty move, the government has done away with the old system of governance in the tribal area. The area have been merged and integrated with Khyber-Pakhtunkhwa. Jurisdiction of superior courts has been extended to the area and Pakistani laws have been made applicable.
This has created a frightening administrative and legal vacuum. The interim Governance Act has been struck down by the high court so that no law or ordinance currently exists under which any governance structure could work.
Even if another interim law is enacted to provide legal cover for resolving civil or criminal cases, there would be administrative hurdles in the way of implementation. Since neither is there any trained civil law-enforcement body, nor are there any officials equipped with needed legal powers, the dispute resolution would not proceed.
The issue is not only the promulgation or extension of laws, there is a need for creating the legal and administrative infrastructure to implement the new laws. As a matter of fact, the creation of infrastructure should have preceded the extension of laws.
Equally important is the issue of addressing the rising level of people’s deep-seated concerns and the acute public resentment against the whole lopsided merger plan. Rank and file tribesmen have never been receptive to the idea of the induction of police, lawyers and the institution of courts as they exist in the rest of the country.
There is widespread anger over the introduction of the legal institutions which are known to take years in adjudicating upon disputes. People in the tribal area do not have the resources either to pay hefty fees to lawyers or have the patience to endure the agonies of trials spread over decades.
There is need to craft a system that on the one hand delivers quick justice and on the other is simple and consistent with the norms and values of the people of the tribal area.
This is by no means a Herculean task. The area needs a system of laws that retains and protects the pluses and virtues of the institutions that were in vogue before merger of the area.
This would mean:
Retain the Jirga system for resolving civil and criminal disputes. However, the constitution of the Jirgas should be such as not to cause or create any impression of either discrimination, favours, monetary inducements or political or administrative pressure.
Maintaining the institution of collective and territorial responsibility. The unfair and harsh clauses of the previous legal system must be done away with. But the spirit of the old institutions or systems that is in accord with principles of justice or equity and which reflect the aspirations of the people must be adequately safeguarded and made part of the new laws.
Resorting to appeals to the High Court or the Supreme Court must be restricted to the barest minimum. Tribesmen would be frustrated having to engage expensive lawyers for fighting cases in courts.
Induction of the police would be a folly and would immediately antagonise the population. That must be avoided.
There’s a need for an effective captain of the team in each district. Such head of the administration will be duly empowered to act as a district judge with a clear and comprehensive mandate to keep peace in the area and to act as a pivot for ensuring the smooth execution of all schemes in the socio-economic sector. Only an officer who exercises control over all the nation-building departments can have the power and ability to resolve the many administrative and legal issues that will inevitably arise as the new institutions begin to deliver.
It will be a folly to discard the principles of the old institutions completely at the expense of the poor tribesmen. There are scores of countries in the world which have different laws for different regions — China, Russia, Germany, the US, the UK and India to name a few. Pakistan should be no exception.
The identity of the tribes must not be interfered with in the name of ‘smooth and unbiased administration’. Such tribal identities are important and useful not only in executing development schemes but also in apprehending culprits — an experience that is shared by all those who had the distinction of having served in these areas.
Since land settlement has not been done in the tribal areas, disputes over ownership would crop up everywhere if the old system is completely discarded. In order to ensure a smooth transition, there would be the need to keep intact the system of collective or tribal ownership of the land at least for a period of twenty or more years.
There would be the need for exploring the mineral potential of the area on a crash programme basis. This should draw attention of the policymakers as a priority.
Delivery of quality education is a top priority. All schools and health clinics which exist only in name must be shut down to create room for others. Scarce land must not be wasted on police lines, courts, residences, offices. On the other hand, irrigation systems should be launched for lands to be made cultivable for such high-value crops as fruit, saffron, mushrooms, grapes, etc.
As soon as possible the area should be demilitarised. There is no need to establish big forts or cantonments. The khasadars backed by the Frontier Corps would be enough to maintain peace in the area. The tribes would be called upon to ensure they do not permit any miscreants to live in their territories. That was the system prevailing before the induction of the military in early 2002.
Human resource development would be a critical ingredient in the new scheme of things. This could be achieved by setting up vocational training centres all over the area — both for men and women. Parks and sports complexes need to be set up to encourage boys and girls to participate in outdoor games and in recreational activities. Libraries should be built in all tehsil and district headquarters.
Forests need to protected and expanded. Development of agriculture and farmland should be a key policy objective.
Without a clear and focused approach that takes into account the ground realities and the compulsions of a transforming socio-political landscape, the area may plunge into a vicious cycle of self-perpetuating violence that will bring misery and pain to the people.
The government must be warned not to let that happen.
Published in The Express Tribune, January 12th, 2019.