Tribal Areas Today: ‘Legal black-hole’
and ‘Talibanisation in the Tribal
Areas of Pakistan’.
Kamran Arif
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 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:
T
Khyber Agency:
Kurram Agency:
Mohmand Agency:
Orakzai Agency:
South Waziristan:
North Waziristan:
Population of around 595,000. Main
Tribes: Tarkani and Utmankhel
Population around 547,000. Main Tribes
Afridi and Shinwari.
Population of around 450,000. Main
Tribes: Turi and Bangash.
Population of around 334,000. Main
Tribe: Mohmand.
Population of around 225,000. Main
Tribe: Orakzai.
Population of around 430,000. Main
Tribes: Wazir and Mehsud.
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, NorthWest 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 PAKISTAN
The 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-eDurran, 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.
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.
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.