A TROUBLED HISTORY

The approach to Khyber is full of signs of the region's volatile past. Low stone structures are scattered around deserted roads that get thicker with army checkpoints and barbed wire blockades the deeper into Khyber it winds.

Since Pakistan gained independence from the British in 1947, FATA - a 27,200sq km belt along the mountainous northwestern border - has been treated differently from the rest of the country.

The Frontier Crimes Regulation (FCR) special administrative framework was set up by the British in the 19th century, giving Pashtun tribes independent control over their territory in order to subdue resistance to British rule.

"The FCR can be seen as an attempt of the British to use Pashtunwali [a non-homogenous tribal code of conduct] to support British state power in an area where they did not think it worthwhile, because of the amount of resistance, to impose British law," says Anatol Lieven, a policy analyst who covered the region as a journalist for years.

"The FCR can be seen as an attempt of the British to use Pashtunwali [a non-homogenous tribal code of conduct] to support British state power in an area where they did not think it worthwhile, because of the amount of resistance, to impose British law," - Anatol Lieven

"The key element ... was to work through local intermediaries, the 'maliks' [tribal chiefs]."

The system rested on the maliks and federally-appointed Political Agents (civil administrators, commonly known as PA's), giving them vast legal, administrative and political powers with little oversight.

It also denied FATA residents the right of legal representation and appeal and enforced a form of "collective justice" by authorising punishment against an entire tribe for alleged crimes by a member.

FCR continued in FATA after Pakistan's independence, the constitution exempting it from parliament's laws and only allowing the president to take decisions about it after consultation with tribal elders. FATA was essentially cut off from fundamental constitutional rights accorded to the rest of Pakistan.

The legal grey area FATA was in was useful for the state: Throughout the 1980s, backed by the United States, Pakistan's then-military government sponsored the formation of the Afghan Taliban as a force to challenge the Soviet Union in neighbouring Afghanistan.

"FATA ... served as a training ground for those who would then undertake strike-and-hide operations in Afghanistan during the Soviet occupation," says Karam Elahi, a scholar on the region.

After the September 11, 2001, attacks, some areas in FATA became even more volatile as al-Qaeda, and subsequently the TTP, found refuge and a foothold there.

According to residents and researchers, these groups gained power through intimidation, bribes, religious propaganda and escalating violence, killing tribal elders who challenged them.

They also destroyed educational institutions and banned NGOs, reversing what scarce development there was in the impoverished area and further isolating FATA's citizens from the rest of Pakistan as governance structures became almost non-existent.

"The entire fabric of society ... everything was terribly affected," says Elahi, explaining how FATA became known as "ilaqa-e-ghair", an area of the unknown, even for Pakistanis living only a few hundred kilometres away.

The entire fabric of society ... everything was terribly affected - Karam Elahi

"Whatever rudimentary form of economic infrastructure and fabric there was, it was also tested and destroyed [by the armed groups and subsequent army operations]."

Data collected over the years show evidence of FATA's declining state. It has consistently been ranked the lowest in the country in education, health, and standard of living, according to the United Nations Development Programme (UNDP). The average child was reported to expect less than seven years of schooling, while healthcare facilities were almost non-existent.

TIMELINECLICK ON DATES TO EXPAND

2001-04 So-called "war on terror" reaches FATA

After the overthrow of the Taliban government in Afghanistan, fighters start crossing the porous Pakistan-Afghanistan border to seek refuge in FATA. In 2004, the US begins using drone attacks to target fighters in FATA.

2002 Early attempts at reform

Local governance regulations are extended to FATA but yield no results as local councillors are nominated instead of being elected and carry no real power.

2009 Obama calls out the tribal areas

President Obama shifts the focus of the so-called "war on terror" to Pakistan, calling the tribal region between Afghanistan and Pakistan the "most dangerous place in the world" and asking the Pakistani government to take more action.

2011-13 'Cosmetic' reforms continue

New reforms package introduced, including amendments to FCR, the establishment of a tribunal where FCR decisions can be appealed, and the extension of political rights to FATA. The reforms were labelled “cosmetic” as they failed to resolve real issues in the region.

June 2014 Army launches offensive in Waziristan

Attacks from Waziristan-based fighters continue across Pakistan and the army launches Operation Zarb-e-Azb to clear the region of fighters.

December 2014 National Action Plan introduced

In response to the Peshawar school attack that killed 148 people, most of them children, the government creates the National (Counter-Terrorism) Action Plan with FATA reforms as a top priority.

2015-16 Committee to investigate FATA reforms created

The government establishes the FATA Reforms Committee to come up with a “concrete way” of mainstreaming FATA. In 2016, after months of consultation with various stakeholders, the committee recommends the merger of FATA with the neighbouring province of KPK.

In August 2016, after years of government promises to re-examine FATA's status, a government committee presented its official report, after talks with stakeholders across the region, proposing the integration of FATA with Khyber Pakhtunkhwa, which shares a border with FATA.

On May 24, 2018, the FATA reforms committee's bill was put to a vote, passing unanimously, with the abstention of two parties who were in favour of FATA becoming its own province. The next day, the Senate approved the bill and a day later, so did the Khyber Pakhtunkhwa provincial assembly.

The landmark constitutional amendment was welcomed by many Pashtuns, some of whom celebrated the merger with rallies and fireworks.

The celebrations were short-lived, however.

LONG ROAD TO INTEGRATION

For years, Rab Nawaz*, a 31-year-old citizen journalist and activist, advocated for change in Kurram, a tribal district blessed with fertile valleys and green mountains that has seen little development since independence.

When the merger was announced, Nawaz was ecstatic, calling his friends and family members to share his joy.

A month later, however, he was arrested along with five members of his family, according to FCR regulations - which allowed for the arrest of members of the same family or tribe for the crimes of one - the same laws they had just been told were abolished.

"They called me and asked me to stop writing against government departments and policies like the FCR," Nawaz recalls. "They threatened me [saying] they will punish me in a way that I won't forget."

Nawaz spoke to Al Jazeera on the condition of anonymity, fearing reprisals for being critical of the government.

Although local law enforcers were aware that FCR had been abolished, Nawaz claims that their methods of forced confessions, maltreatment in jail and refusal of legal assistance were reminiscent of the old system.

* Name changed on request

VOICES FROM THE TRIBAL DISTRICTS

"I can foresee that these tribal areas will stand up for their rights at some point and it will create an outbreak, because they are in pain, they have problems, and they will retaliate at some stage."
- Hameed Ullah Jan Afridi, Anti-merger politician, Peshawar

New laws with nobody to enforce them

The merger abolished all previous governance systems in FATA, including FCR, resulting in an administrative and legal vacuum where old laws were not applicable and new laws could not be enforced due to an absence of law-enforcement bodies.

"If you want a regular criminal justice system to function, there are certain prerequisites," says Oves Anwar, a director at the Research Society of International Law (RSIL). "You need to have a police force that does on-the-ground investigations, then you need to have prosecutors who can present in court, and then you need judges."

The FATA reforms committee had recommended the merge be done over five years, to allow gradual mainstreaming through administrative, legal and security reforms.

"There were a lot of functions to deal with from relevant departments, such as what to do with the judicial set up, local government, integration with KP, financial set up, funding for socioeconomic development, manning the porous borders and so on," says Asad Iqbal, an official at the Ministry of States and Frontier Regions (SAFRON), which deals with FATA.

"Our original plan was to complete the merger within five years, which would come at the completion of these functions. But … we merged before taking the actions."

Caught in legal limbo, the government passed an interim governance regulation that, at heart, reproduced the existing laws governing FATA, including clauses that gave the former political agents judicial powers and let tribal councils, or "jirgas", take control of civil and criminal matters.

"There was a vacuum," says Sartaj Aziz, who headed the FATA reforms committee. "We knew it was not constitutional, but since we had suddenly done the merger and abolished FCR, we kept a modified version [of it] to fill the vacuum. It was an improvisation."

That "improvisation" was struck down by the provincial high court in October 2018, which ruled that the merger made Pakistani law instantly applicable in FATA, meaning no alternate system could operate there. But there was no administrative system in the area to apply the country's laws.

FATA's residents were now governed by Pakistan's police and court structure but there were no police officers or judges to implement that.

"The intention [behind the merger] is very noble, but this entire effort, in our opinion, has been undone or has been undermined by a critical lack of legal capacity at the highest policy-making level," says Jamal Aziz, executive director at RSIL.

While the government has committed to expediting infrastructure development, authorities are unable to start work unless funding is disbursed, something Jamal Aziz says needs to happen "on a war effort".

The tribal districts were promised annual development funding of approximately 90 billion rupees ($563m) for 10 years. After the merger, however, the government struggled to find the funds in an already fragile economy.

In June, the Khyber Pakhtunkhwa government approved 162 billion rupees ($1bn) for the tribal districts in its budget this year, although it is unclear if the funds will be disbursed.

VOICES FROM THE TRIBAL DISTRICTS

"The biggest development is that the area's MNA [Member of National Assembly] is sitting in the middle of the region. Under FCR, it was out of the question that an elected official could sit among their people."
- Iqbal Khan Afridi, Elected legislator, Khyber

Mixed feelings about the merger

Ordinary residents of FATA have witnessed hardly any progress in their lives post-merger, they say.

"Many members of tribal political parties are becoming anti-merger after seeing what's happening," says Hameedullah Jan Afridi, a former federal minister and Pashtun activist.

Afridi is a vocal advocate for FATA becoming a separate province. Surrounded by supporters at his home in Peshawar, he categorically rejects claims that the reform committee consulted all sides before delivering its report.

Leaning forward, his voice rising in frustration, he calls the merger a "drama" by those who "don't know [the] ABCD of our culture".

"I can foresee that these tribal areas will stand up for their rights at some point and it will create an outbreak, because they are in pain, they have problems, and they will retaliate at some stage."

Afridi has started a network of anti-merger individuals and groups, petitioning to make the former FATA a separate province. He suffered a setback, however, when he was unsuccessful in his bid for a Khyber seat in the provincial assembly in July.

A large portion of the population of FATA has expressed their willingness to embrace the merger, seeing it as a sign of hope in their centuries-old struggle against the FCR, exploitative leaders and the lack of basic facilities.

"We are very happy with the decision. We are getting justice," says Amer Shah, a political activist and social worker. "The influence of the Political Agents has decreased significantly. Prior to this, only the malik and influential people were being heard."

Most residents like Shah are eager to become a regularly governed part of the country after living under the complicated and often corrupt FCR system. However, they question whether the government will follow through on details like political representation and relief from the absolute power of the PAs and maliks.

"People are afraid that there will be selected individuals who come into power," he says. "The people who had influence before are still pushing to maintain their power in the community. […] We demand justice under one law, just like other Pakistanis."

VOICES FROM THE TRIBAL DISTRICTS

"They say that FATA has merged with KPK, but the system remains the same. It is the same donkey with a different saddle."
- Shamil Khel, Tribal chief, Khyber

The tribal councils

As the state begins the implementation of the judicial system in FATA, some Pashtuns are worried that local courts will undermine the authority of the tribal councils, or jirgas.

Jirgas rule by consensus on criminal and civil disputes and are popular for reflecting the values of "Pashtunwali", an unwritten and non-homogenous "code of conduct" that many ethnic Pashtuns follow.

Residents of FATA who are familiar with Pakistan's ailing judiciary question if it can serve the interests of people who have known faster decision-making through jirgas.

"Our jirga system is one of the most unique justice systems in the world," says Malik Pervez, who has headed jirgas for 25 years as a tribal leader in his native Khyber. "If we get a case of 302 [murder], we resolve it within months. In the Pakistani legal system, they keep changing court hearing dates for years."

However, jirgas themselves can be contentious among the Pashtuns, especially those with less social power. This is especially true for women, who often find themselves at a disadvantage in the male-dominated legal system. Jirgas in the tribal districts have been known to pass sentences such as "honour killings" or the handing over of women as a form of property.

Kainat Kamal, a youth rights activist from FATA says women have a better chance of justice through the regular legal system.

"If someone does not even have the right to speak up in a group of men and voice their issues and demand something, then how is it possible that she will receive justice?

"There are property issues, divorce issues, personal issues of women that they are not able to share [in jirgas]. Justice only takes place when you listen to both parties."

Kamal believes those who oppose the merger or demand a separate province want to retain the power and influence they had under the previous system, under which they were "uncrowned kings".

There are other issues, too.

Elahi, the scholar, says police will need to be trained on the area's conservative norms - such as the inviolable privacy of the women's quarters in homes - or people will reject them.

These cultural sensitivities also mean women aren't heard from, as became apparent when Khan dismissed a request to talk to the women in his household about their views on the merger.

"Our women are queens of the household," he says, laughing. "What issues would they have?"

BEYOND THE MERGER

The rising Pashtun frustration with the state is happening against the backdrop of another, larger social movement that FATA's youth have been rallying behind.

The Pashtun Tahafuz Movement (PTM) first started in 2014 as a grassroots campaign demanding an end to extrajudicial killings and disappearances in FATA, which were allegedly carried out by the Pakistani military and intelligence services in their war against the TTP.

In 2018, PTM shot to national prominence when it championed the case of Naqeebullah Mehsud, a young Pashtun cloth seller killed by police in the southern city of Karachi.

While PTM's demands have been limited to ending human rights abuses, it echoes ordinary citizens' resentment against the state after years of having their rights ignored.

"Movements like PTM emerged ultimately because, with a continuous sense of alienation and frustration and deprivation and injustice and lawlessness, it was bound to lead to some kind of resentment," says Elahi.

The Pakistani military, which has ruled the country for roughly half of its 72 years of independence, has taken issue with the PTM's demands, accusing it of being funded by foreign intelligence agencies.

In May, tensions came to a head after gunfire erupted at a confrontation between PTM activists and soldiers at an army check-post in the North Waziristan tribal district. The clash resulted in at least eight people being killed and two PTM leaders - both elected representatives to parliament from the area - arrested. They remain in jail facing terrorism charges.

As people in the tribal districts went to the polls on July 20 for the first time in their history to elect 16 candidates to the provincial assembly, the imprisoned politicians were not forgotten.

"Elected MNAs [Members of the National Assembly] from Waziristan are in jail and only the ruling party candidates were allowed to freely campaign there," says Shaheen ur Rehman, a member of the Pakistan Muslim League party, referring to a month-long ban on public rallies and demonstrations in South Waziristan following the clash between the army and PTM.

Other anti-merger groups boycotted the elections, resulting in low turnout at some polling stations.

While the 16 elected officials prepare to take charge in the provincial assembly, the installation of a local government structure at the district level is yet to occur.

"The local bodies election was intended to happen before the actual elections, but that didn't happen," says Sartaj Aziz.

Keeping faith in change

Yet change is in the air, some say.

Beside Khyber's busy Bara Bazaar, construction is under way on a government building that will include community spaces and administrative offices. Iqbal Khan Afridi, MP for the area, sits in one of the few completed halls with dozens of men sitting around him, waiting to voice their issues.

From elderly residents who have come from far-flung areas to settle a land dispute to young men eager to discuss the upcoming elections, the building is already milling with activity.

"The biggest development is that the area's [MP] is sitting in the middle of the region. Under FCR, it was out of the question that an elected official could sit among their people," says Afridi.

As courts start functioning across some tribal districts, people are hopeful.

"We cannot find justice in jirgas. Maybe we will find it in the courts," says Muhammad Ayaz, a resident.

"We cannot find justice in jirgas. Maybe we will find it in the courts." - Muhammad Ayaz.

Sartaj Aziz, who admits that he was surprised by how "smoothly" this monumental decision was taken, is satisfied that it happened when it did, saying he believes it was "a process in the right direction".

Whether the future justifies Sartaj Aziz's confidence or not, even a cursory look into FATA's past reveals the lingering effects of regional proxy wars, national alienation and decades of deprivation.

In Khyber, Nawaz, the activist, is now out of jail and sitting the exams for induction into the provincial civil service.

"The merger process is still incomplete," he says. "We know there will be issues but at least they will be like the rest of Pakistan. But if we have our own problems and face the rest of the country's problems as well, then we will have twice the trouble."