Tribal Areas Today: ‘Legal black-hole’ and ‘Talibanisation in the

Tribal Areas of Pakistan’.

Kamran Arif

THE TRIBAL AREAS OF PAKISTAN

• Population: 3.17 Millionwhich about 2% of the total population of Pakistan.

• Area: 27,224 Sq Km, which is roughly 3% of the Pakistan’s total area.

1998 Census

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.

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.

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.

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 one’s 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.

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.

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.

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.

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.

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.

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?

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)

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.

• 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.

THE FRONTIER CRIMES REGULATION

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.

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’.

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.

Pakistan

• Declared unconstitutional more then once.

“….obnoxious to all recognized modern principles of administration of Justice”

Justice AR Cornelius, Federal Court

• Doctrine of Eclipse.

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.

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

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.

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.

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.

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.

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.