Failed already?

THE need for military courts to try militants is built on a false assumption. The country's judicial and policing mechanism is far from perfect, but blaming them for militancy is wrong. If for nothing else, the country's normal legal-judicial setup has been missing from the tribal areas, from where militants have launched their attacks including the one on the school in Peshawar - which then led to the formation of military courts.

Thetribal areas are kept aloof from the country. To this day, Fata lacks a proper legal-judicial system, due to which the areas don't have the regular courts or normal police that are present in the rest of the country.

Rather, the tribal area's peculiar system already comprises so-called speedy courts. While these trials still deny tribal residents their basic rights, the rise of militants went unchecked.

The existing code of Fata, known as the Frontier Crimes Regulation (FCR), has long empowered a handful of administrators to adjudicate about the whole tribal agency. The FCR is still so arbitrary that, to give an example, male members of tribes - between 16 and 65 years of age - can be punished for a crime anyone in their tribes may have committed.

The code is in force even now. In November last year, in response to a blast in South Waziristan, administrators there reportedly launched a crackdown on a whole subtribe in the area - as if the whole sub-tribe had planted the bomb.

Whenever anyone has advocated for introducing Pakistani law into Fata, the typical response, especially from civil and military officers, was the one that has now been used in defence of military courts: the 'slow' Pakistani judicial system, with its low conviction rate, doesn't suit the 'tribal' nature.

Fata's 'swift' tool, which barred politicians from holding political gatherings in the area, couldn't stop the militants, who overran almost all the tribal agencies at one point or another. The state apparatus didn't do much to stop the rise of militants, and rather stood accused of providing space to several of them.

As if the FCR was not enough, across all of Fata and the Provincially Administered Tribal Areas (Pata), the military has, since 2011, acquired considerable powers, including those of detaining anyone on security grounds. The controversial Action in Aid of Civil Power (AACP) even provides that a statement or deposition by any armed forces member shall be sufficient for convicting the accused. A tribal politician, in an interview to a human rights organisation, likened the regulation to ' martial law' over Fata.

Yet, three years down the road, Fata-linked militants continued with their attacks across the country.

The previous director general of ISPR, the military's media arm, rather admitted that because of dithering by the ex-army chief to go after militants in North Waziristan in 2011, the militants strengthened their foothold there and increased their contacts in three years in that agency, where "all kinds of militants" were gathered.

Key planners of the Peshawar school attack too made their way in the tribal territory.

To be sure, although Fata is tagged as a hub of militancy, the fatherly figures of several sorts of militancy rather reside in Punjab. Punjab-based militants have attacked deep in the country and exported hatred to its other parts. Any anti-militant response would be useless if Punjab is left out.

But, when it comes to military courts, some commentators argue that the scope better be restricted to Fata 'type' militancy or to those who have taken ' arms against the state' in the name of religion. The focus once again will be on the tribal areas.

Admittedly, even the anti-state militants in Punjab, despite whipping up hatred against all, were not able to convert any territory of their province into a terror-training emirate, as their partners in Fata did.

These days, some people claim that Pakistan cannot turn into another Iraq or Libya, where private militias have risen to power amid declining state institutions. What is ignored is how before extremist entities like Isis were formed in the Middle East, equally brutal militants secured themselves in Fata, in part because its existing 'swift' institutions couldn't resist the militant onslaught.

Strikingly, in some tribal and bordering settled villages, locals have been left to defend themselves against the Taliban. Veteran journalist Rahimullah Yusufzai recently wrote how a ragtag of local peace militia in a village in Peshawar, long fought the group of Umar, the mastermind of Peshawar attack.

With proper law-and-order mechanisms in Fata as are present in the settled areas, the territory would not have slipped so easily into chaos.

Many stakeholders, including political parties, the judiciary and KP police have been pushing for integrating Fata into Pakistan. Ironically, all these players are often blamed these days for not rising up to check militancy.