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: 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 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-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.
 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.