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Reform of Colonial-Era Laws Aims to Bring Pakistan’s ‘Black Hole’ into the Light

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FATA is a heavily militarized area where around 100,000 Pakistani troops are stationed.(RFE/RL)
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Pakistan, May 29, 2017: It’s a place where a toddler can be thrown in jail for crimes committed by a tribe member; where people can spend years behind bars without ever being charged; and where the authorities can oust entire communities from their homes without explanation.

Justice in Pakistan’s Federally Administered Tribal Areas (FATA) is a throwback to another era — a colonial one. For more than a century, human and legal rights have taken a back seat under a set of laws introduced by the British Raj in 1901 in an effort to bring resistant Pashtun tribes on a contested frontier to heel.

But now plans are in motion to bring residents of the restive region along Pakistan’s western border with Afghanistan under the umbrella of the central government by ending the old legal system, offering voting rights and greater government representation, and raising living standards. The inclusive approach, in theory, will end FATA’s isolation and help lure locals away from joining the various militant groups that thrive there.

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Legal ‘Black Hole’

A number of tribes voluntarily agreed to the laws, known as the Frontier Crimes Regulations (FCR) when they were introduced. But the system did not die with the end of British colonial rule — it was incorporated into Pakistan’s legal system upon its founding in 1947, and remains more or less intact today.

Residents of the seven tribal areas that make up FATA have suffered immensely under the system, and have seen few of the benefits of being part of a state. They were granted only minimal political representation; were not allowed to vote in national elections; infrastructure modernization such as electrification largely passed them by; unemployment rates jumped to as high as 80 percent; and millions have been displaced by fighting and natural disasters.

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The FCR was originally intended to quell fierce Pashtun opposition to the British Indian empire in the late 19th century. The system gave unchecked power to tribal leaders, who were given partial autonomy in exchange for quelling rebellion and protecting British interests. The FCR suppressed the locals while keeping the area extremely isolated.

The British created FATA and the neighboring Northwest Frontier Province (known today as Khyber Pakhtunkhwa Province) as a buffer zone following the creation of a 2,400-kilometer border with Afghanistan known as the Durand Line in 1893. The border, which Kabul does not recognize to this day, divided the Pashtun tribes who lived in the region.

The draconian laws allowed the British Raj — and later presidentially appointed bureaucrats known as “political agents” — to punish an entire tribe for the crime of an individual, jail residents for up to three years without cause, and forcibly relocate people and have their property searched and seized.

In one notorious case, a 2-year-old was jailed in 2004 along with her mother and two siblings for a crime committed by the girl’s father.

In another, the entire Mehsud tribe was subjected to collective punishment in 2009 after the government moved against the Pakistani Taliban, which was led by 35-year-old tribesman Baitullah Mehsud. The political agent in FATA’s South Waziristan tribal agency ordered the detention of tribe members and the seizure of their property.

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The lack of formal law and writ of the state in FATA has led many activists to label the area a “black hole.” For residents of FATA, the proposed reforms are essential to establishing law and order, and ridding their homeland of the moniker.

Nation-Destroying

Sayid Kabir has been incarcerated numerous times in FATA without charge or explanation.

“I was put in jail seven times under the FCR,” says the 37-year-old, who now lives in Peshawar, the capital of Khyber Pakhtunkhwa Province, under which FATA would be subsumed under the reforms. “I did not commit any crime. I only protested for more provisions of water and electricity in my community.”

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It’s a common story in FATA. Former resident Qayum Afridi says he was jailed for years in dismal conditions. The FCR, he says, “destroyed us” and must be abolished. If and when the reforms go into effect, he may get his wish.

Supporters of the proposed changes have staged several protests calling for the government to adopt the reforms immediately.

The reforms, recommended by the government-appointed FATA Reforms Committee, were approved by Prime Minister Nawaz Sharif and his cabinet on March 2. Pakistan’s president also endorsed the reforms.

For the reforms to take effect, the plan approved by the government on March 2 must now be codified as a draft constitutional amendment that requires approval by two-thirds of the lawmakers in both chambers of Pakistan’s bicameral legislature. There are 104 members of the upper chamber of Pakistan’s parliament, the Senate, and 342 lawmakers in the lower chamber, the National Assembly. In 2016, both chambers of Pakistan’s legislature approved a draft version of the plan.

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Under the plans, FATA would be merged into Khyber Pakhtunkhwa Province within five years. The jurisdiction of Pakistan’s national courts would be extended to FATA, and tribal law enforcement would be incorporated into the national security forces. The merger with Khyber Pakhtunkhwa would also give FATA access to Pakistan’s main parliamentary body, the National Assembly, something it was denied under the FCR.

Afrasiab Khattak, a senator and the president of the secular Awami National Party (ANP) in Khyber Pakhtunkhwa Province, says the reforms would bring about significant change.

“If properly implemented the reform package for mainstreaming FATA can not only empower the local population by providing them with the fundamental rights enshrined in the constitution but can also bring the area under full state control and deprive the terrorists from enjoying the safe heavens in the area,” he said.

Only Closer To Fine

Others say the planned changes, collectively known as the Riwaj Act, do not go far enough.

Mustafa Qadri, a Pakistani human rights activist, says the proposed reforms are “far from perfect,” but can be an “important step toward a new, positive phase in FATA’s history.”

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“There are other concerns with the proposed legal setup in FATA: enshrining so-called ‘tribal laws’ into legislation is a recipe for further abuse of rights,” Qadri notes.

He refers to the “jirga” legal system in which unelected tribal councils dominated by elders mete out justice. Qadri says this system is “dominated by political interests” and fails to meet “even elementary aspects of international fair-trial standards.”

Under the reforms, the jirga system would work in tandem with Pakistani courts, which would have jurisdiction in the area, thereby creating an opening for disputes.

A rural jirga is held near the Khyber Pass. (RFE/RL)

Qadri also says that women are excluded from defending themselves under the patriarchal system in which tradition-bound village elders decide their fates. This, he says, has made them particularly vulnerable to rulings that allow sexual and other forms of abuse to be perpetrated with impunity.

He also laments that under the changes the country’s powerful military — which has been accused of carrying out extrajudicial killings, arbitrary arrests, and torture during recent campaigns in the region — is still above the law and will retain sweeping powers. FATA is a heavily militarized area where around 100,000 Pakistani troops are stationed.

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Mohammad Taqi, a U.S.-based Pakistan political analyst, says there are major constitutional, political, and administrative challenges that must be addressed before the changes go into effect, but that the plan is doable.

“All tribal agencies and frontier regions are contiguous to Khyber Pakhtunkhwa,” he says. “Expanding the administrative machinery will be a major task but not an insurmountable one.”

Divided Over Reforms

FATA residents appear to be divided over the proposed reforms, although a majority want to eradicate the FCR and merge with Khyber Pakhtunkhwa.

The FATA Research Center, an Islamabad-based nonprofit organization, conducted a poll in February that found that 68 percent of respondents approved of abolishing the FCR; 74 percent of respondents (54 percent fully; 20 percent partially) endorsed merging FATA with Khyber Pakhtunkhwa.

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However, 26 percent of residents wanted FATA restructured into separate province. This is in keeping with the positions of some religious and nationalist political groups that have voiced opposition to the reforms, saying the changes could undermine local tribal traditions and Islamic law that is dominant in FATA.

In March, five tribal leaders challenged the proposed reforms in the Supreme Court, saying they were “illegal and unconstitutional.” The tribal leaders noted that only the president, and not the prime minister, can decide a merger of the tribal areas even though the president has already backed the reforms. They said a jirga should decide on the merger.

One of the most prominent critics of the proposed reforms is Maulana Fazlur Rehman, a hard-line Islamist who leads the largest faction of the Jamiat-e Ulema Islam (Society of Muslim Clerics, JUI). Mainly led by traditional Sunni clerics, the JUI wants to turn Pakistan into a Shari’a state. Rehman has accused Islamabad of “bulldozing their wishes” upon FATA’s residents.

Another critic is Mahmood Achakzai, the head of the Pakhtunkhwa Milli Awami Party, who has also alleged that Islamabad is enforcing changes in FATA without the consent of residents.

Both men have been accused of opposing the reforms for personal and political gain. (RFE/RL)

 

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Pakistan Fears Economic Turmoil, Re-thinks ‘Silk Road’ Project With China

In 2017, Pakistan turned down Chinese funding for a $14 billion mega-dam project in the Himalayas because of cost concerns.

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Pakistan
A man passes through a railing while others board a train as they make their way home at the Cantonment railway station in Karachi, Pakistan. VOA

After lengthy delays, an $8.2 billion revamp of a colonial-era rail line snaking from the Arabian Sea to the foothills of the Hindu Kush has become a test of Pakistan ’s ability to rethink signature Chinese “Silk Road” projects because of debt concerns.

The rail megaproject linking the coastal metropolis of Karachi to the northwestern city of Peshawar is China’s biggest Belt and Road Initiative (BRI) project in Pakistan, but Islamabad has balked at the cost and financing terms.

Resistance has stiffened under the new government of populist Prime Minister Imran Khan, who has voiced alarm about rising debt levels and says the country must wean itself off foreign loans.

“We are seeing how to develop a model so the government of Pakistan wouldn’t have all the risk,” Khusro Bakhtyar, minister in Pakistan’s planning ministry, told reporters recently.

Pakistan
Visitors read instruction material about land that was reclaimed from the Indian Ocean for the Colombo Port City project, on the Galle Face sea promenade in Colombo, Sri Lanka, Jan. 2, 2018. The Port City project was initiated as part of China’s Belt and Road Initiative. VOA

Unease elsewhere

The cooling of enthusiasm for China’s investments mirrors the unease of incoming governments in Sri Lanka, Malaysia and Maldives, where new administrations have come to power wary of Chinese deals struck by their predecessors.

Pakistan’s new government had wanted to review all BRI contracts. Officials say there are concerns the deals were badly negotiated, too expensive or overly favored China.

But to Islamabad’s frustration, Beijing is only willing to review projects that have not yet begun, three senior government officials have told Reuters.

China’s Foreign Ministry said, in a statement in response to questions faxed by Reuters, that both sides were committed to pressing forward with BRI projects, “to ensure those projects that are already built operate as normal, and those which are being built proceed smoothly.”

Pakistani officials say they remain committed to Chinese investment but want to push harder on price and affordability, while re-orientating the China-Pakistan Economic Corridor (CPEC), for which Beijing has pledged about $60 billion in infrastructure funds, to focus on projects that deliver social development in line with Khan’s election platform.

Pakistan
China’s ambassador to Pakistan, Yao Jing, Islamabad. VOA

‘Mutual consultation’

China’s Ambassador to Pakistan, Yao Jing, told Reuters that Beijing was open to changes proposed by the new government and “we will definitely follow their agenda” to work out a roadmap for BRI projects based on “mutual consultation.”

“It constitutes a process of discussion with each other about this kind of model, about this kind of roadmap for the future,” Yao said.

Beijing would only proceed with projects that Pakistan wanted, he added.

“This is Pakistan’s economy, this is their society,” Yao said.

IMF bailout likely

Islamabad’s efforts to recalibrate CPEC are made trickier by its dependence on Chinese loans to prop up its vulnerable economy.

Growing fissures in relations with the United States, Pakistan’s historic ally, have also weakened the country’s negotiating hand, as has a current account crisis likely to lead to a bailout by the International Monetary Fund, which may demand spending cuts.

“We have reservations, but no other country is investing in Pakistan. What can we do?” one Pakistani minister told Reuters.

Pakistan
Laborers dig the ground before replacing concrete sleepers along railway tracks in Karachi, Pakistan. VOA

Crumbling railways

The ML-1 rail line is the spine of country’s dilapidated rail network, which has in recent years been edging toward collapse as passenger numbers plunge, train lines close and the vital freight business nosedives.

Khan’s government has vowed to make the 1,872 km (1,163 mile) line a priority CPEC project, saying it will help the poor travel across the vast South Asian nation.

But Islamabad is exploring funding options for CPEC projects that depart from the traditional BRI lending model, whereby host nations take on Chinese debt to finance construction of infrastructure, and has invited Saudi Arabia and other countries to invest.

One option for ML-1, according to Pakistani officials, is the build-operate-transfer (BOT) model, which would see investors or companies finance and build the project and recoup their investment from cash flows generated mainly by the rail freight business, before returning it to Pakistan in a few decades time.

Yao, the Chinese envoy, said Beijing was open to BOT and would “encourage” its companies to invest.

Pakistan
A man waits to cross a portion of track once shared with the Karachi Circular Railway line in Karachi, Pakistan. VOA

Large rail projects, problems

Rail mega-projects under China’s BRI umbrella have run into problems elsewhere in Asia. A line linking Thailand and Laos has been beset by delays over financing, while Malaysia’s new Prime Minister Mahathir Mohamad outright canceled the Chinese-funded $20 billion East Coast Rail Link (ECRL).

Beijing is happy to offer loans, but reticent to invest in the Pakistan venture as such projects are seldom profitable, according to Andrew Small, author of a book on China-Pakistan relations.

“The problem is that the Chinese don’t think they can make money on this project and are not keen on BOT,” Small said.

Off-books debt

During President Xi Jinping’s visit to Pakistan in 2015, the ML-1 line was placed among a list of “early harvest” CPEC projects that would be prioritized, along with power plants urgently needed to end crippling electricity shortages.

But while many other projects from that list have now been completed, the rail scheme has been stuck.

Pakistan
. The difference between the two validate the investments made on the road, and give a hopeful image for the future.

Pakistani officials say they became wary of how early BRI contracts were awarded to Chinese firms, and are pushing for a public tender for ML-1.

Partly to help with price discovery, Pakistan asked the Asian Development Bank (ADB) to finance a chunk of the rail project through tendering. The ADB began discussions on a $1.5-$2 billion loan, but China insisted the project was “too strategic,” and Islamabad kicked out the ADB under pressure from Beijing in early 2017, according to Pakistani and ADB officials.

“If it’s such a strategic project then it should be a viable project for them to finance on very concessional terms or invest in?” said one senior Pakistani official familiar with the project, referring to the BOT model.

China’s foreign ministry said Beijing was engaged in “friendly consultations” with Pakistan on the rail project.

Chinese companies participated in BRI projects in an open and transparent way, “pooling benefits and sharing risks,” it said.

Pakistan
In this file photo taken Oct. 10, 2015, a bus moves past by solar power and wind power farms in northwestern China’s Ningxia Hui region.

Chinese debt or no project

Analysts say Pakistan will struggle to attract non-Chinese investors into the project, which may force it to choose between piling on Chinese debt or walking away from the project.

In 2017, Pakistan turned down Chinese funding for a $14 billion mega-dam project in the Himalayas because of cost concerns and worries Beijing could end up owning a vital national asset if Pakistan could not repay loans, as occurred with a Sri Lankan port.

Khan’s government chafes at several Chinese intercity mass transport projects in Punjab, the voter heartland of the previous government, which now need hundreds of millions of dollars in subsidies every year.

Also Read: Creating a New Silk Road: China’s Billion Dollar Investments to Expand Its Transportation Network

They also fume about the risk of accumulating off-books sovereign debt through power contracts, where annual profits of above 20 percent, in dollar terms, were guaranteed by the previous administration.

With the ML-1 line, there are also those who harbor doubts closer to home, including the previous government’s finance minister, Miftah Ismail, who said his ministry had always had concerns about its viability.

“When people say it’s a project of national importance, that usually means it makes no sense financially,” he said. (VOA)