Asia Report N°24215 Jan 2013
EXECUTIVE SUMMARY AND RECOMMENDATIONS
Pakistan’s Provincially Administered Tribal Areas (PATA), which include Swat and six neighbouring districts and areas in Khyber Pakhtunkhwa province (KPK), remains volatile more than three years after military operations sought to oust Islamist extremists. Militant groups such as the Sunni extremist Tehrik-e-Nifaz-e-Shariat-e-Mohammadi (TNSM) and its Pakistani Taliban-linked Fazlullah faction are no longer as powerful in Swat and other parts of PATA as they were in 2008 and early 2009, but their leaders and foot soldiers remain at large, regularly attacking security personnel and civilians. If this once dynamic region is to stabilise, PATA’s governance, security and economic revival must become a top priority for the Pakistan Peoples Party (PPP)-led government in Islamabad and the Awami National Party (ANP)-led government in Peshawar – and for their successors following the next general elections.
While the militants continue to present the main physical threat, the military’s poorly conceived counter-insurgency strategies, heavy-handed methods and failure to restore responsive and accountable civilian administration and policing are proving counter-productive, aggravating public resentment and widening the gulf between PATA’s citizens and the state. Meanwhile neither the federal nor the KPK provincial government is fully addressing the security concerns of residents.
Public and political support for action against the TNSM and allied Pakistani Taliban networks in Swat and its neighbouring districts remains strong, demonstrated by the outrage against the 9 October 2012 attack by Mullah Fazlullah’s Taliban faction on Malala Yousafzai, a Swat-based fourteen-year-old activist for girls’ right to education. That attack has also further eroded public confidence in the military’s claims of having dismantled the insurgency and underscores the grave security challenges that PATA’s residents face.
The military’s continued control over the security agenda, governance and administration in PATA and the state’s failure to equip KPK’s police force with the tools and authority it needs to tackle extremist violence lie at the heart of the security and governance challenges. Some serious efforts have been made to enhance police capacity, functioning and presence on the streets, including by increasing the size of the force and the number of police stations, particularly in Swat. However, they are insufficient. The KPK police should be properly trained, equipped, and accountable. Islamabad and Peshawar, KPK’s provincial capital, need to abolish parallel law enforcement entities such as Levies, dismantle state-supported tribal lashkars (militias) and give KPK’s police the lead in enforcing the law and bringing extremists to justice.
Yet, the complexities of PATA’s legal framework still make upholding the rule of law a daunting task. Unlike the Federally Administered Tribal Areas (FATA), PATA is subject to Pakistan’s basic criminal and civil law framework and falls under the jurisdiction of the provincial KPK legislature (in addition to the National Assembly) and the Peshawar High Court and Supreme Court. However, under Article 247 of the constitution, laws apply to PATA, as in FATA, only if specifically extended by the governor (the federation’s representative), with the president’s consent.
Since formally joining KPK (then called Northwest Frontier Province) in 1969, PATA has also been governed by various parallel legal systems that have undermined constitutional rights and isolated it from the rest of KPK. More recent reforms have only expanded that isolation. Despite public opposition to Islamist militancy in Swat and neighbouring PATA districts, the ANP-led provincial government has not repealed the Nizam-e-Adl Regulation 2009, which imposed Sharia (Islamic law) in PATA as part of a military-devised peace deal with the Taliban-allied TNSM in April 2009. In August 2011, President Asif Ali Zardari promulgated the Actions (in Aid of Civil Power) Regulation 2011 (AACP) for PATA and FATA, vesting the military with virtually unchecked powers of arrest and detention and further undermining fundamental rights and the rule of law. While the AACP provides legal cover for the military’s human rights abuses, the imposition of Sharia has made effective and accountable governance elusive.
Efforts to revive a shattered economy, once heavily dependent on tourism, have also faltered, and pressing humanitarian needs remain unmet because of continued instability and short-sighted military-dictated policies and methods. These include travel restrictions on foreigners, stringent requirements for domestic and international NGOs, abrasive and intrusive questioning at military checkposts and the military’s deep economic encroachment.
To overcome PATA’s rising security challenges, the national and provincial leaderships should reclaim the political space ceded to the military. Islamabad and Peshawar must develop and assume ownership over a reform agenda that ends PATA’s legal and political isolation, strengthens a deteriorating justice system, revokes laws that undermine constitutionally guaranteed fundamental rights and fully integrates the region into KPK.
To Pakistan’s Federal Government and Khyber Pakhtunkhwa’s Provincial Government:
1. Integrate the Provincially Administered Tribal Areas (PATA) into KPK province fully by:
a) removing Articles 246 and 247 from the constitution, thereby ending PATA’s tribal status and allowing all laws passed by the national and provincial legislatures to be applicable;
b) merging PATA into the legal mainstream by abolishing the Nizam-e-Adl Regulation 2009; and
2. Mitigate the impact of conflict on PATA’s economy and ensure the provision of humanitarian assistance by:
a lifting all curbs on travel, including No Objection Certificate (NOC) requirements for foreigners visiting Malakand Division; and
b) removing restrictions on international and local NGOs in PATA, easing the process for foreign NGO workers to obtain residence and visit visas and directing the civil bureaucracy to phase out and ultimately end NOC requirements for international NGOs.
3. Revise the draft Fair Trial Bill 2012 to:
a) empower only civilian agencies to investigate and gather intelligence, and exclude the Inter-Services Intelligence Directorate (ISI), Military Intelligence and other military-controlled intelligence agencies from the bill’s list of authorised entities, making any such data they acquire inadmissible in court;
b) include a provision for federal and provincial parliamentary oversight and require standing committees on interior and home and tribal affairs in the National Assembly and KPK’s provincial assembly, respectively, or subcommittees formed under them, to inquire into complaints of unjustified invasions of privacy under the bill; and
c) require the higher judiciary to oversee the provision and issuing of warrants under the law and hold lower court judges accountable if they issue warrants without justification or fail to ensure that warrants are not abused by state authorities.
4. Refocus on the basics of law enforcement and criminal justice, in addition to new surveillance measures under the Fair Trial bill, by:
a) enhancing protection afforded to witnesses, prosecutors and judges in terrorism-related cases;
b) modernising KPK’s police force, including by investing in crime scene units in individual police stations equipped with forensics and other modern investigative tools;
c) overhauling and modernising KPK’s forensic science laboratory;
d) extending ongoing efforts to upgrade and increase the number of police stations in Peshawar and Swat to Lower Dir, Upper Dir and Chitral, focusing initially on the more conflict-prone towns;
e) following through on recommendations to raise the number of female police officers and ensuring all have the same career advancement prospects as their male counterparts; and
f) raising the number of officers relative to constables in the KPK police and then maintaining a ratio of around 60/40 of constables to officers.
5. Strengthen civilian-led law enforcement further by:
a) abolishing Levies and other parallel law enforcement entities in PATA and absorbing their personnel into the regular KPK police after meeting requisite training, vetting and other formal requirements;
b) dismantling all state-supported tribal lashkars (militias), terminating the practice of delegating security functions to unofficial entities; and
c) removing all military personnel from security checkposts, replacing them with police, including female personnel where conditions allow.
6. Order the closure of all military-controlled internment centres, transferring detainees to judicial custody; and end all military-run deradicalisation and rehabilitation programs for captured militants, requiring that any such programs are civilian-led and under judicial oversight.
7. Investigate allegations of extra-judicial killings, torture, illegal detention and other human rights abuses in PATA and take disciplinary action against any security personnel, including senior officials, found responsible.
To the Peshawar High Court and Supreme Court of Pakistan:
8. Review the Actions (in Aid of Civil Power) Regulations 2011 and the Nizam-e-Adl Regulation 2009 to determine their consistency with fundamental constitutional rights and principles, if they are not repealed by the government.
9. Follow through on pledges to hold military and intelligence officials accountable for illegal detentions and other human rights abuses.
10. Review the constitutionality of jirgas (tribal councils), including consistency with fundamental rights of equality, dignity and fair trial, drawing on the 2004 judgment of the Sindh High Court that deemed these forums unconstitutional.
11. Revoke the National Judicial Policy of 2009 and end the practice of formulating policy through committees, speeches, and documents; speak instead through judicial judgments and develop case law that closes legal loopholes and holds lower court judges accountable for dismissing cases prematurely and failing to consider or order the production of evidence, such as publicly available video footage.