Tribal Areas Today:

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Tribal Areas Today Legal black-hole and
Talibanisation in the Tribal Areas of Pakistan.

• Kamran Arif

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THE TRIBAL AREAS OF PAKISTAN

• Population 3.17 Million
• which about 2 of the total population of
  Pakistan.
• Area 27,224 Sq Km,
• which is roughly 3 of the Pakistans total
  area.
• 1998 Census

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THE TRIBAL AREAS OF PAKISTAN

• The Tribal Areas consists of Seven Agencies,
  which are administered by a Political Agent.
• Four Frontier Regions (small pockets of Tribal
  Areas) administered under the FCR from the
  Settled Districts.

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TRIBAL AREAS OF PAKISTAN

• Bajaur Agency Population of around 595,000.
  Main T Tribes Tarkani and Utmankhel
• Khyber Agency Population around 547,000. Main
  Tribes Afridi and Shinwari.
• Kurram Agency Population of around 450,000.
  Main Tribes Turi and Bangash.
• Mohmand Agency Population of around 334,000.
  Main Tribe Mohmand.
• Orakzai Agency Population of around 225,000.
  Main Tribe Orakzai.
• South Waziristan Population of around 430,000.
  Main Tribes Wazir and Mehsud.
• North Waziristan Population of around 361,000.
  Main Tribes Wazir and Dawar.

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THE TRIBAL AREAS OF PAKISTAN

• All but one of the Tribal Agencies share border
  with Afghanistan (The Durrand-Line).
• 600 Km of the 2500 Km Long Durrani Line lies in
  the Tribal Areas.
• All tribes are ethnically Pukhtoon (or Afghan),
  Muslim (predominantly Sunni) by religion, speak
  Pushtu language, attributes that they share with
  their Pukhtoon brothers in Afghanistan, North-
  West Frontier and the Baluchistan Provinces of
  Pakistan.

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THE TRIBAL AREAS

• Tribal Areas are usually areas with largely or
  exclusively Tribal population, Which are
  characterised by its isolation, distinct culture,
  primitive traits and the economic backwardness.
  (Lokur Committee Report, 1965)
• Tribalism is the belief in fidelity of ones own
  kind, defined by ethnicity, language culture,
  language and religion. (John Naisbitt The
  Global Paradox)
• Tribal Areas or People are usually excluded from
  the normal political, administrative and judicial
  structures of the country.
•  

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THE TRIBAL AREAS OF PAKISTANThe Issues

• Do the people of the Tribal Areas of Pakistan
  have a unique culture, language, religion or even
  history?
• Are the exclusions of the people of Tribal Areas
  from the mainstream administrative, political and
  judicial systems of the country only because of
  the law.
• Strategic Significance.
• Vulnerabilities.

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History

• Over the millenniums South Asia has seen many
  foreign invaders, including the Aryans and
  Persians, Greeks (Macedonians), Mongols, Arabs,
  Afghans, the British.
• Most of the invaders came to South Asia through
  the passes in the present day Tribal Areas.
• Kabul has been a popular staging post for many
  South Asian adventures and has been eyed with
  suspicion each India ruler.

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History

• The Mughals who ruled both Delhi and Kabul (16th
  to 18th century), never totally subdued the
  Pukhtoon tribes.
• Remained concerned with keeping the communication
  routes to Kabul open.
• 1747 Ahmed Khan, established the Kingdom of
  Afghanistan, called himself the Durr-e-Durran,
  Pearl of Pearls. The Durrani Dynasty.

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The Tribes

• The Hill Tribes (around the present day Tribal
  Areas) were too unruly and never got into the
  Imperial Mughal fold.
• The Mughal like all previous Kings were concerned
  more with collecting revenue and left other
  matters to the tribes.
• Emperor Babur (early 16th century) in his memoirs
  mentions sending a force to the Bangash Tribe who
  had refused to pay taxes. To this day they do not
  pay any taxes.

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Customs and Traditions

• Tribal people, governed by Customary Law.
• Riwaj (custom) and Nurkh (precedent).
• The highly romanticized Code of Honour. Custom
  of Melmastiya, Nanawati and Badal.
• Main decision making and adjudication body The
  Jirga.
• Jirga means a circle in Mongol and probably
  signifies equality of its members.
• Members of Jirgas are usually the influential and
  generally women were excluded.

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History

• The British arrived in the region in the 19th
  century. Coming from the Punjab (dislodging the
  Sikh rule) by a mixture of conquest, intrigue and
  agreement.
• Adventures into Afghanistan.
• Two expanding empires Czarist Russia and the
  British Empire. The Great Game?
• Afghanistan a Buffer State?

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History

• Durrand-Line drawn in 1893. Separating Colonial
  India and the Afghanistan.
• In 1901 North West Frontier Province was created
  (4 districts separated from the Punjab) the
  remaining area between these districts and the
  Durrand line became the Tribal Areas.
• Treaties with the local tribes, to keep the peace
  and the communication routes and means.
• Frontier Crimes Regulation, 1901 (earlier FCR
  1848, 1873 and 1876)

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THE FRONTIER CRIMES REGULATION

• Concentrates all police, executive and judicial
  functions in the Deputy Commissioner (the
  Political Agent).
• Principle of collective responsibility and
  collective punishment.
• Adjudication through a Jirga. Members local
  Maliks, appointed by the Political Agent.
• Council of Elders (Jirga) decide on points of
  fact both in civil as well as criminal cases.
• Decisions of Jirga not binding on the political
  Agent.

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THE FRONTIER CRIMES REGULATION

• Jirgas decided cases under the riwaj (customary
  law which is generally regressive and unusually
  harsh to women).
• No legal representation, no cross-examination.
• Security for Good Behaviour (sec 40, 42)
• No Judicial Review.
• Codification of Customary law. The evolving
  customary law frozen in time.

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THE FRONTIER CRIMES REGULATION

• Trials no evidence is recorded. No trained
  police force, no investigation, no scientific
  evidence.
• As Maliks loyal to the Government, Jirgas open to
  Government manipulation. Lack credibility.
• Jirgas good only as a device to reach
  settlements.
• Admit here-say evidence.
• Writ of the Government Protected, Administered,
  and Inaccessible.

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THE FRONTIER CRIMES REGULATION

• Can regular laws be extended without
  development.
• The districts of NWFP were developed? Trained
  police force (detection and investigation),
  courts and prison system. Lawyers?
• Regular Laws Financial Commitment.
• The Minto-Morley Reforms. First World War. Change
  of British Policy?
• Government of India Act, 1935 Excluded Areas.

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Pakistan

• Creation of Pakistan.
• The Indian Independence Act abrogated the
  agreements with the Tribes.
• Tribal Maliks signed instruments of accession to
  Pakistan.
• Independence did not make any difference for the
  people of the Tribal Areas.
• The Constitutions of Pakistan 1958 and 1962
  retained the Excluded Area device.
• Guarantee of Fundamental Rights Judicial
  Challenges could be raised.

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Pakistan

• Declared unconstitutional more then once.
• .obnoxious to all recognized modern principles
  of administration of Justice
• Justice AR Cornelius, Federal Court
• Doctrine of Eclipse.

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FATA

• Constitution of 1973 Tribal Areas, (called the
  Federally Administered tribal Areas).
• Governed by the President through the Governor of
  the NWFP.
• General laws of the country. President extends
  laws through Presidential Regulations
• Legislators from FATA legislated for rest of the
  country but not FATA.
• No Jurisdiction of the Superior Courts not
  granted jurisdiction.
• Residents of FATA have Fundamental Rights
  guaranteed by the Constitution but no forum to
  enforce them.
• No political activity, allowed. Elections. Adult
  Franchise.

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FATA

• Government Policy in FATA.
• Glorified the FCR and the tribal.
• Rule of Law Financial Commitment
• Remained Lawless.
• No legitimate economic activity. Trade and
  industry.
• No Revenue system. Business? Bank Loans?
• Defective Criminal Justice System

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FATA

• Haven for Mafias Guns, Narcotics, timber.
  Smuggling electronic goods etc.
• Grazing grounds for bureaucrats.
• When the Russians finally did invade Afghanistan,
  The undeveloped, inaccessible FATA finally served
  its purpose.
• Seven million Automatic Rifles and grenades,
  rocket launchers and even light artillery pieces
  in FATA and NWFP.

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Afghan Civil War

• The fighting between the various Mujahideen
  factions at the end of the war.
• The Afghan Civil War.
• Emergence of a group calling themselves the
  Taliban.
• Taliban literally means a religious students in
  Pushtu. (singular Talib).
• Claim they are religious Students and want to
  bring Afghanistan under Islamic Rule.

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Taliban

• Taliban at the time were seen as fighting force
  with decentralized ad faceless leadership,
• Took over Kabul in September 1996.
• Recognized only by Pakistan, Saudi Arabia and
  UAE.
• Almost all are ethnically Puhktoons (as against
  Tajiks and Hazaras).
• Enforce Islamic Law which provides both the
  justification and the legitimacy of there rule.

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Taliban

• For Taliban and other Militants FATA was a gift
  from heaven.
• Spread into the Tribal Areas and some settled
  districts of the NWFP.
• Killing of a handful of local Maliks was all it
  took to take control of Waziristan.
• Pakistan is now paying dearly its policies in
  FATA.

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Conclusions

• The people of the Tribal Areas have been forced
  to remain in tribalism through exclusions
  created by law.
• The system that has been imposed on the people of
  FATA not much better terror regime of the
  Taliban.
• Peace can only be achieved (and Talibanisation
  arrested) by establishing the Rule of Law which
  requires not only huge financial commitment will
  but also strong political.
• A logical first step would be to extend the
  jurisdiction of the superior court has to
  extended to the tribal to FATA.
• Steps need to be taken to a create a legitimate
  Economy in the FATA.