In 2014, a jirga (tribal council) in Musa Khel, Pakistan, situated in the Frontier Region of Kohat, ordered the killing of Abdul Wahab, a resident of Dara Adam Khel. He was said to be involved, along with five other people, in the killing of the chairman of the Qasim Khel Coal Company, a local coal company in Kohat. The jirga found that the six men, including Wahab, not only killed the chairman, but stole money.
Another jirga, arranged by the assistant political agent of the region, also upheld the decision, which said that Wahab should be killed and that no one would be allowed to bury him in his hometown. Adding to that, the jirga also ordered that Wahab’s family not be given any share of the local coal company’s revenue, and that they be expelled from the town. No one was to be allowed to marry into the family.
In most of Pakistan, there is no concept of collective punishment, as seen in the Wahab case. Yet the jirga’s sweeping decision was technically legal because the tribal region, or Federally Administered Tribal Areas (FATA), is ruled by the Frontier Crimes Regulations, not by Pakistani laws.
The tribal areas of Pakistan, known as FATA, comprise seven agencies and five frontier regions, spanning a 10,500-square-mile strip of land wedged between Afghanistan and the Pakistani province of Khyber Pakhtunkhwa (KPK). The region is governed not by Pakistani law but a century-old set of regulations that leaves the enforcement of law and order to locals. This was first enacted and implemented by the then-colonial power of Great Britain in 1901.
The original aim of the FCR, from the British perspective, was to allow some kind of autonomy to tribal areas but at the same time keep the stranglehold of colonial rule. It is a most brutal law because all power lies with one person – an appointed civil servant known as the political agent.
Seventy years have passed since Pakistan’s independence, but the tribal areas are still governed by an outdated administrative and legal system, not by Pakistani laws. To date, Pakistan’s constitution directly blocks Parliament and the judiciary from having any jurisdiction there. The president of Pakistan has the sole authority to decide about enacting laws in the tribal areas.
Zahid Hussain, an author and journalist, explained for the The Diplomat why this archaic system remains intact over 100 years later:
There are two stumbling blocks in the removal of FCR. Over the years, FATA has become the center of all kind of conflicts. So that was one of the reasons there were some interests for keeping that law over there. The most significant hurdle is the bureaucratic control. The second thing is the reluctance of the Pakistani state to bring FATA into the mainstream. At one point, basically, it suited the state when FATA was used as a training ground for Mujahideen. At that time the semi-autonomous status of FATA has suited the state, but now things have totally changed.
Today, “As far as I think the FCR is concerned, all people of FATA and political parties agree on the abolition of this draconian law,” Hussain added. “[…]The dispute is over what it should be replaced with.”
Hussain explained that there are two major elements of the FCR: the granting of a certain amount of autonomy to the tribes, and the enshrining of the political agent’s power. “As far as the power of the political agent is concerned all [concerned] want it to go away,” Hussain said. But “tribal vested interests” want “the other part [of the FCR], which provides autonomy to the tribes … to be intact.”
This is the crux of the problem, according to Hussain: tribal leaders “don’t want the writ of the state and want to implement their own outdated laws in the name of the social structure.”
One proposed law that would replace the FCR, the Riwaaj Act. asks for the implementation of tribal traditions. It would allow tribal elders to hold power and to conduct their own jirgas for resolving various issues. But this reform would still keep FATA’s justice system out of sync with the rest of the country’s.
For instance, Pakistan criminalized honor killing in 2016, while suggesting those found guilty of such a crime be served with a life sentence. But this law is not implemented in FATA. Honor killing technically is legal in the tribal areas, provided the jirga system favors such a killing in the name of custom. In most cases of honor killings recorded in FATA in which criminals went unpunished, they have had the support of a jirga. A few tribal elders call such killings a part of their old traditions and customs.
According to activists, the tribal concept of justice particularly imperils women.
Samreena Khan Wazir, one of the first female lawyers from the tribal area, grew up in South Waziristan. She now lives in Islamabad. In 2015, she led a protest against the FCR in the city of Wana. “We want equal rights for [the] women and youth of FATA. Definitely, we can’t live with the outdated laws and we do need development and educational institutes,” said Wazir.
“We women suffered more than anyone because of this terrorism and draconian law,” she continued. Most women of the tribal regions are illiterate and confined to their homes, according to Wazir. But the Pakistani government’s war on terror in FATA, which displaced many residents, had an unintended consequence in this regard: “When the war against terrorism occurred and many were displaced and lived in Peshawar or other major cities, [they] found one thing: that there is another life other than [life in] FATA,” Wazir said.
Shah Jee Gul Afridi, a member of the National Assembly, is one of the most vocal critics of the FCR. “There is no [other] country in the world that has different laws or no laws for some citizens and divides them into no-go areas,” he said. “Unfortunately… this system is applied in FATA, which is said to be a no-go and tribal area without the implementation of the constitution.”
Gul Afridi believes that “if FATA is mainstreamed it would help in eliminating militancy in the tribal region.” That, in turn, would benefit the regional security situation. “Afghanistan will also benefit from this move,” he explained, “because the terrorists would get no place in our areas when [FATA] is developed, mainstreamed, and comes out of the hands of tribal leaders, maliks [tribal chiefs], and the madrassah system.”
To date, the only reform to the FCR was made in 2011, allowing political parties to function in the region. This did indeed dent the influence of mullahs and maliks, as well as Jamiat Ulema-e-Islam-F (JUI-F). Before this reform, JUI-F had a complete political monopoly in the region through its influence over the madrassah system and tribal chiefs.
Today, despite the FCR, tribal elders are not totally in control because of the unprecedented growth of the youth population in the tribal region. These young people are less likely to follow the old traditions and customs; instead, they demand development and education.
Arshad Khan Afridi (no relation to Gul Afridi), chairman of FATA Youth Jirga – a parent platform for various youth organizations – said that now, the youths of the region are on the streets. Young people demand the abolition of the FCR, the mainstreaming and development of FATA, and its merger with KPK.
Afridi believes “the JUI-F is against the mainstreaming of FATA or merger with KPK. They fear that once it is brought into the mainstream and their influence would go away… This is all a game of power and political vested interests.”
A youth activist from FATA reported that, on December 30, the FATA Supreme Council — comprising the leadership of the JUI-F, bureaucrats and maliks — gathered in the China Chowk in Islamabad and called out the FATA Youth Jirga for going against tribal norms by allowing women to participate in protests and other activities. The Council demanded that this be stopped. The social media wing of JUI-F is already actively putting out propaganda against the unprecedented participation of young women in the protests.
But sooner or later, educated youth will replace the conservatives. The pace of change might be slow but it has begun; change might be delayed but it cannot be stopped.
At the moment, however, the JUI-F is one of strongest allies of the ruling party. Therefore, at the request of the JUI-F, the government is delaying the removal of colonial law and the merger of the war-affected tribal region with KPK. The ruling Pakistan Muslim League-Nawaz (PMLN) does not want to harm its relations with JUI-F because the PMLN is already in hot water after the removal of its chief from the post of prime minister over the Panama Papers scandal.
The time has come to mainstream FATA. Most of the areas have been cleared from militancy. The next step – a transfer of power — has to be taken now. In 2004, there was a suggestion to hold local government elections, but that was never implemented. It is high time for power to be shared and evolved rather than given to a few people.
Zahid Hussain pointed out that the government’s own commission report “came out with clear recommendations that [FATA] should gradually be merged with KPK,” but there has been little movement toward implementing that plan.
“If mainstreaming does not take place then it will be very difficult to maintain the gains which have been made by the military,” warned Hussain. “The army can’t control things forever; actually, it should not as well.”
Shah Meer Baloch is a former Visiting Fellow at the Institute for Peace Research and Security Policy at the University of Hamburg, a fellow of the Swedish Institute and the Institute for Foreign and Cultural Relations (Institut für Auslandsbeziehungen/IFA), and a freelance writer. His research focus is on Asia-Pacific politics, Balochistan issues, extremism and human rights. He is from Pasni, District Gwadar.