pakistan's tribal areas today

7/31/2019 Pakistan's 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 sma poc ets o Tri aAreas) administered under the FCR from the

Settled Districts.


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TRIBAL AREAS OF PAKISTAN:

Bajaur Agency: Population of around 595,000. MainT Tribes: Tarkani and Utmankhel

Khyber Agency: Population around 547,000. Main TribesAfridi and Shinwari.

Kurram Agency: Population of around 450,000. MainTribes: Turi and Bangash.

Mohmand Agency: Population of around 334,000. MainTribe: Mohmand.

Orakzai Agency: Population of around 225,000. MainTribe: 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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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, speakPushtu language, attributes that they share with

their Pukhtoon brothers in Afghanistan, North-West Frontier and the Baluchistan Provinces ofPakistan.


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THE TRIBAL AREAS

Tribal Areas are usually areas with largely or exclusively

Tribal population, Which are characterised by itsisolation, distinct culture, primitive traits and theeconomic backwardness. (Lokur Committee Report,1965)

Tribalism is the belief in fidelity of ones own kind,defined by ethnicity, language culture, language andreligion. (John Naisbitt: The Global Paradox)

Tribal Areas or People are usually excluded from the

normal political, administrative and judicial structuresof the country.


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The Issues

Do the people of the Tribal Areas of Pakistan

have a unique culture, language, religion oreven history?

Are the exclusions of the eo le of Tribal

Areas from the mainstream administrative,political and judicial systems of the countryonly 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 andPersians, Greeks (Macedonians), Mongols, Arabs,

Af hans, 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 subduedthe Pukhtoon tribes.

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 theImperial Mughal fold.

The Mughal like all previous Kings were

concerned more with collecting revenue and leftother matters to the tribes.

Emperor Babur (early 16th century) in his

memoirs mentions sending a force to theBangash Tribe who had refused to pay taxes. Tothis 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. Customof Melmastiya, Nanawati and Badal.

a n ec s on ma ng an a u cat on o y: eJirga.

Jirga means a circle in Mongol and probablysignifies equality of its members.

Members of Jirgas are usually the influential andgenerally women were excluded.


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History

The British arrived in the region in the 19th

century. Coming from the Punjab (dislodgingthe Sikh rule) by a mixture of conquest,

.

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 theDurrand 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 (thePolitical Agent).

Principle of collective responsibility and collective.

Adjudication through a Jirga. Members localMaliks, 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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Jirgas decided cases under the riwaj

(customary law which is generally regressiveand unusually harsh to women).

THE FRONTIER CRIMES

REGULATION

, - .

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

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 theagreements with the Tribes.

Tribal Maliks signed instruments of accession toPakistan.

Independence: did not make any difference for thepeople of the Tribal Areas.

The Constitutions of Pakistan 1958 and 1962 retainedthe Excluded Area device.

Guarantee of Fundamental Rights: Judicial Challengescould be raised.


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Pakistan

Declared unconstitutional more then once.

.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 theNWFP.

General laws of the country. President extends laws

Legislators from FATA legislated for rest of the country butnot FATA.

No Jurisdiction of the Superior Courts not grantedjurisdiction.

Residents of FATA have Fundamental Rights guaranteed bythe 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

.

No legitimate economic activity. Trade andindustry.

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.

Afghanistan, The undeveloped, inaccessibleFATA finally served its purpose.

Seven million Automatic Rifles and grenades,

rocket launchers and even light artillery piecesin 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.

Emer ence of a roup callin themselves the

Taliban. Taliban literally means a religious students in

Pushtu. (singular Talib).

Claim they are religious Students and want tobring 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.

Reco nized onl b 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

.

Killing of a handful of local Maliks was all it

took to take control of Waziristan.

Pakistan is now paying dearly its policies inFATA.


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Conclusions

The people of the Tribal Areas have been forced toremain in tribalism through exclusions created by law.

The system that has been imposed on the people of FATAnot much better terror regime of the Taliban.

Peace can only be achieved (and Talibanisation arrested)by establishing the Rule of Law which requires not onlyhuge 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.

pakistan's tribal areas today

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