Dissertation - “The Laws and Justice System in FATA and Recommendations for their Reformations”

The Laws and Justice System in FATA with Recommendations for

Reformations

A Dissertation Submitted To Faculty of Law of University of South Asia in Partial Fulfillment of the Requirements for the

Degree of

LLM

By

NAVEED AHMED Roll No.: M-13311

2008

Supervisor: Professor Dr. Muhammad Naeem

University of South Asia

“In the name of Allah, the most Gracious and the most Merciful”

Table of Contents

Page

CHAPTER I

Introduction 1 CHAPTER II

FCR (Frontier Crimes Regulation) 26 And The Legal Administrative System of FATA CHAPTER III

History of Law & Justice System in FATA 60 (Northwest Tribal Belt of Pakistan) CHAPTER IV

Proposed Recommendations for Reformation 99 CHAPTER V

Conclusion 114 List of Cases Bibliography

Abstract In the current situation, Federally Administered Tribal Areas (FATA) evoke

feelings of an area where civilization is yet to enter. Where people are averse to any outside influence and criminal activities are common, rather protected and appreciated. The reality, however, is absolutely different. The people of this deprived region need and love peace and development. Groaning under grinding poverty and lack of resources for a long time, they look up to the Government to pay due attention to their genuine needs to progress. They need schools, colleges, hospitals, roads and economic opportunities, like other people, to lead a respectable and secure life. An all encompassing development strategy can ensure the achievement of these goals and also act as a bulwark against the rising tide of extremism and militancy in the area. The geographical location of FATA should not become a disadvantage for the people rather it should be used as an opportunity for prosperity.

This dissertation prognosticates the laws and Justice System in FATA its impacts, causes, losses and future strategy to control the situation. The administrative system in tribal area is destabilized and there is need to improve, reform and specially strengthen the Laws & Justice system of FATA otherwise its effects could spillover to the whole country.

Following the passage of UNSC Resolution - 1368,

“Pakistan is actively participating in the war on terror. In fact, “few countries suffered as much from terrorism…. As Pakistan and few did as much to combat it.” At the same time, Pakistan emphasizes that the root causes of terrorism must be addressed if the war against terrorism is to be successful. “No matter how despicable [terrorism] is, it is essentially a symptom of an underlying malaise, and that malaise is desperation, hopelessness and alienation.”

On the issue of bringing about a change in administrative and judicial system of FATA, we have two schools of thoughts. The one called a semi Islamic–cum traditional school of thought, proposes to introduce a semi Islamic cum–traditional social and legal system, most likely on the pattern of Malakand division of NWFP. This school stands for minor changes in FCR and wants its replacement by Islamic laws, led by religious leaders Qazi Hussein Ahmad and Maulana Fazl ur-Rehman along with some of their like minded tribesmen. The other school of thought, which is called progressive and moderate, stands for a complete social change and is of the view that, tribal children want to adopt civilized life thereby ready to accept life under civilized laws and social set up, so that they may be able to go side by side contributing to modern civilization along with other communities both on national and international arena. They need some major reforms not only in FCR but also in entire administrative, judicial and political system.

ACKNOWLEDGMENTS

I would like to express my heart-felt gratitude, in the first instance to staff at the University of South Asia Pakistan for their support in my studies, particularly during a time of upheaval and uncertainty. My special thanks go to Professor Dr. Mian Muhammad Naeem, who has been a guiding force, always willing to listen and offer encouragement; his support has been truly appreciated. I would also like to thank the Law Faculty; their support and encouragement of which, have had a positive impact on my studies. Their assistance and understanding whilst on the course, was greatly appreciated. Also, thanks are due to those individuals who have offered their friendship, support and advice, both on and off the LLM course. To this end, I would like to extend my thanks to Suhail, Yasir and Ahmad.

Finally I would like to extend my warmest thanks and appreciation to those closest to me. Firstly, to my parents; for their constant encouragement and support who has been my ‘rock’; giving me support and tireless encouragement, especially in this last year. I truly am a lucky man!

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Chapter I

Introduction FATA (Federally Administered Tribal Areas)

AGENCIES AND FR’S

Introduction:

The areas that today make up FATA were once part of the battleground on which the ‘Great Game’ of imperial domination was played out in the 19th century. For the British colonial administrators of India, effective control of the region was imperative for the defense of their Indian possessions, serving as a bulwark against Russian expansionism in Central Asia. It proved difficult, however, for the colonial government to establish its writ in the tribal areas.1

Colonial administrators oversaw but never fully controlled the region through a combination of British-appointed agents and local tribal elders. The people were free to govern internal affairs according to tribal codes, while the colonial administration held authority in what were known as ‘protected’ and ‘administered’ areas over all matters related to the security of British India. Administratively, FATA is divided into seven political agencies i.e. Bajaur, Mohmand, Khyber, Orakzai, Kurram, North and South Wazirstan, and six Frontier Regions: Peshawar FR, Kohat FR, Bannu FR, D I Khan FR, Tank FR and Lakki Marwat FR. So far as the political agencies of Khyber, Kurram, North and South Wazirstan are concerned, there has been little change in the administrative set up since their creation more than a century and a quarter ago. The other three agencies were created after the establishment of Pakistan in 1947.2

Although various tribes cooperated with the British off and on in return for financial incentives (Abbas, 2006), this quid pro quo arrangement was never completely successful. Throughout the latter half of the 19th century, British troops were embroiled in repeated battles with various tribes in the area (Hunter et al., 1840–1900). Between 1871 and 1876, the colonial administration imposed a series of laws, the Frontier Crimes Regulations, prescribing special procedures for the tribal areas, distinct from the criminal and civil laws that were in force elsewhere in British India. These regulations, which were based on the idea of collective territorial responsibility and provided for dispute resolution to take place through a jirga (council of elders), also proved to be inadequate.

1 Federally Administered Tribal Areas of Pakistan By Noor ul Haq, Rashid Ahmad Khan, Maqsudul Hasan Nuri Published by

Islamabad Policy Research Institute, 2005 Original from the University of Michigan Digitized 28 Aug 2008 ISBN 9698721126, 9789698721121 90 p. 2 Government of Pakistan, 1998 Census Report of FATA, Census Publication No. 152, (Islamabad: Population Census Organization, Statistics Division, March 2001), p. 1

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Frustrated in their efforts to subdue the region, the British in 1901 issued a new Frontier Crimes Regulation that expanded the scope of earlier regulations and awarded wide powers, including judicial authority, to administrative officials. In the same year, a new administrative unit, the North-West Frontier Province, was created by carving out parts of the then Punjab province and adding certain tribal principalities. The province, as it was constituted at the time, included five ‘settled’ districts (Bannu, Dera Ismail Khan, Hazara, Kohat and Peshawar) and five tribal agencies (Dir-Swat-Chitral, Khyber, Kurram, North Waziristan and South Waziristan), and was placed under the administrative authority of a chief commissioner reporting to the Governor-General of India (Hunter et al., 1840–1900). The origin of Pathans is not clearly known. Different hypotheses have been propounded.

Some view them as the descendents of “Afghana, the son of Jeremiah, the son of Saul,

who was Solomon’s Commander-in-Chief and builder of his temple.” Some think that

they are one of the lost tribes of Jews. According to others they are of Aryan origin.

Some other think they are of “Turko-Iranian type with a considerable mixture of other

physical types found beyond the Indus.” To some others they are closer to Arabs:

If the origin of a race can be determined on the basis of customs and traditions

then Pukhtoon would be closer to Arabs. The study of Arabian and Pakhtoon society

presents a remarkable resemblance particularly in their tribal organization and social

usages. To both hospitality is one of the finest virtues, retribution a sacred duty and

bravery an essential pre-requisite for an honourable life. Love of independence, courage,

endurance, hospitality and revenge were the supreme virtues of pre-Islamic Arabs. …

These attributes are considered as pillars of the Pukhtoon code of honour or

Pukhtoonwali.3

The institution of the ‘political agent’ was created at this time. Each agency was administered by a political agent who was vested with wide powers and provided funds to secure the loyalties of influential elements in the area. It was also during this period that the maliki system was developed to allow the colonial administration to exercise control over the tribes. Under this system, local chiefs (maliks) were designated as intermediaries between the members of individual tribes and the colonial authorities, and assisted in the implementation of government policies.4

Despite these efforts, bolstered by repeated military campaigns, the colonial administration retained what was at best a tenuous hold on the area until the British quit India in 1947. Soon after Independence, the various tribes in the region entered into an agreement with the government of Pakistan, pledging allegiance to the newly created state. Some 30 instruments of accession were subsequently signed, cementing this arrangement. To the tribal agencies of Khyber, Kurram, North Waziristan and South Waziristan were later added Mohmand Agency (in 1951), and Bajaur and Orakzai (in 1973).

2 Azam Afridi, <http://www.geocities.com/RainForest/Vines/1945/2.html 4 Akbar S. Ahmed, Social and Economic Change in the Tribal Areas (1972-76) (Karachi: Oxford University Press), 1977, p.1.

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Accession did not subsume the political autonomy of the tribes. The instruments of accession, signed in 1948, granted the tribal areas a special administrative status. Except where strategic considerations dictated, the tribal areas were allowed to retain their semi-autonomous status, exercising administrative authority based on tribal codes and traditional institutions. This unique system, given varying degrees of legal cover in each of the country’s earlier constitutions, was crystallized in Pakistan’s Constitution of 1973.5

The Constitution of Pakistan6

PART XII (Miscellaneous)

Chapter 3. Tribal Areas

Article 246. Tribal Areas. In the Constitution,

(a) "Tribal Areas" means the areas in Pakistan which, immediately before the commencing day, were Tribal Areas, and includes

(i) The Tribal Areas of Baluchistan and the North-West Frontier Province; and (ii) The former States of Amb, Chitral, Dir and Swat;

(b) "Provincially Administered Tribal Areas" means (i) The districts of Chitral, Dir and Swat (which includes Kalam), [the Tribal Area in Kohistan district,] Malakand Protected Area, the Tribal Area adjoining [Mansehra] district and the former State of Amb; and (ii) Zhob district, Loralai district (excluding Duki Tehsil), Dalbandis Tehsil of Chagai District and Marri and Bugti tribal territories of Sibi district; and

(c) Federally Administered Tribal Areas includes (i) Tribal Areas adjoining Peshawar district; (ii) Tribal Areas adjoining Kohat district; (iii) Tribal Areas adjoining Bannu district; (iv) Tribal Areas adjoining Dera Ismail Khan District; [(v) Bajaur Agency; (va) Orakzai Agency;] (vi) Mohmand Agency; (vii) Khyber Agency; (viii) Kurram Agency; (ix) North Waziristan Agency, and (x) South Waziristan Agency.

Article 247. Administration of Tribal Areas.

5 Akbar S. Ahmed, Social and Economic Change in the Tribal Areas (1972-76) (Karachi: Oxford University Press), 1977, p.6. 6 The Constitution of Pakistan Article 246 Tribal Areas.

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(1) Subject to the Constitution, the executive authority of the Federation shall extend to the Federally Administered Tribal Areas, and the executive authority of a Province shall extend to the Provincially Administered Tribal Areas therein.

(2) The President may, from time to time, give such directions to the Governor of a Province relating to the whole or any part of a Tribal Area within the Province as he may deem necessary, and the Governor shall, in the exercise of his functions under this Article, comply with such directions.

(3) No Act of [Majlis-e-Shoora (Parliament)] shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs, and no Act of [Majlis-e-Shoora (Parliament)] or a Provincial Assembly shall apply to a Provincially Administered Tribal Area, or to any part thereof, unless the Governor of the Province in which the Tribal Area is situate, with the approval of the President, so directs; and in giving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to a Tribal Area, or to a specified part thereof, have effect subject to such exceptions and modifications as may be specified in the direction.

(4) Notwithstanding anything contained in the Constitution, the President may, with respect to any matter within the legislative competence of [Majlis-e-Shoora (Parliament)], and the Governor of a Province, with the prior approval of the President, may, with respect to any matter within the legislative competence of the Provincial Assembly make regulations for the peace and good government of a Provincially Administered Tribal Area or any part thereof, situated in the Province.

(5) Notwithstanding anything contained in the Constitution, the President may, with respect to any matter, make regulations for the peace and good Government of a Federally Administered Tribal Area or any part thereof.

(6) The President may, at any time, by Order, direct that the whole or any part of a Tribal Area shall cease to be Tribal Area, and such Order may contain such incidental and consequential provisions as appear to the President to be necessary and proper:

Provided that before making any Order under this clause, the President shall ascertain, in such manner as he considers appropriate, the views of the people of the Tribal Area concerned, as represented in tribal jirga.

(7) Neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area, unless [Majlis-e-Shoora (Parliament)] by law otherwise provides:

Provided that nothing in this clause shall affect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately before the commencing day. 7

The People

The people living in the tribal belt are called Pashtuns, Pakhtuns or Pathans. There is little written evidence available about their ancient past. The earliest record about them is given by Herodotus (b.484 BC), Book 3, p.102, which says that “their way of life is almost the same as that of Baktrians [people of Balkh]. They are the

7 The Constitution of Pakistan Article 247 Tribal Areas.

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most warlike of all the Indians….” The people around Paktuike (Peshawar) are “the bravest of all the people in those parts.” 8

The first authentic reference about Pashtuns is available in Tarikh-al-Hind written

by Alberuni (973-1048), an eminent scholar who resided in Ghazni and northwestern

region (now Pakistan) in South Asia during 1016-1048. He speaks of these tribes as

“rebellious, savage races occupying the frontiers of India towards the west”. He also tells

us: “In the western frontier mountains of India, there live various tribes of the Afghans

and extend up to the neighbourhood of the Sind valley.”9

The old records make no distinction between Pashtun and Afghan. The distinction between them, though not clear-cut did exist “long before the British came to draw most of the tribes east of the Sulaiman watershed within the orbit of their dominion.” Whereas Afghans are generally under Persian influence being part of Safawi Empire of Persia and speak Darri (Afghani Persian) language, the Pashtuns or Pathans have lesser Persian influence because of their interaction with the Mughal Empire of Delhi, which ruled over them from Peshawar, Kabul or Qandhar.

The Pathans are proud to a degree, self-reliant only as their life can make them, hardy beyond measure and absolutely tireless. Their physical fitness would be incomprehensible if one did not consider the climate and country they live in, which allows no weaklings to survive. Taken as a whole, the frontier tribes are unquestionably among the hardiest men on earth and so much the more redoubtable foes when war is afoot. The origin of Pathans is not clearly known. Different hypotheses have been propounded. Some view them as the descendents of “Afghana, the son of Jeremiah, the son of Saul, who was Solomon’s Commander-in-Chief and builder of his temple.” Some think that they are one of the lost tribes of Jews. According to others they are of Aryan origin. Some other think they are of “Turko-Iranian type with a considerable mixture of other physical types found beyond the Indus.” To some others they are closer to Arabs. If the origin of a race can be determined on the basis of customs and traditions then Pukhtoon would be closer to Arabs. The study of Arabian and Pakhtoon society presents a remarkable resemblance particularly in their tribal organization and social usages. To both hospitality is one of the finest virtues, retribution a sacred duty and bravery an essential pre-requisite for an honourable life. Love of independence, courage, endurance, hospitality and revenge were the supreme virtues of pre-Islamic Arabs. … These attributes are considered as pillars of the Pukhtoon code of honour or Pukhtoonwali. The tribesmen generally wear loose shirt and trousers and a large turban on their head. They carry a chaddar and a rifle on their shoulders. Their women generally wear printed cloth. Their staple food is wheat, maize, barley, rice with meat and vegetable. Their residential houses are in the shape of fortresses. They

8 S. Iftikhar Hussain, Some Major lPakhtoon Tribes Along The Pak-Afghan Border (Islamabad: Area Study Centre, University of Peshawar and Hans Seidal Foundation), 2000, p. 163. 9 Ahmad Hassan Dani, Alberuni’s Indica (Islamabad: University of Islamabad), 1973, p.24.

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are not generally literate but they are practicing Muslims and could be easily excited by their religious leaders. They are fierce fighters and freedom loving.10

The Tribes Among Pashtuns, there is a clear distinction between those who inhabit plains

and those who live in mountains. The highlanders live in general area east of the plateau of Afghanistan and west of the plains of Pakistan. They conform to ”patriarchal society where concepts of modern law and liberty find no place.” There are a number of tribes but the more famous ones are Yusafzais in Malakand and Bajaur Agency; Mohmands in Mohmand Agency; Afridis and Shinwaris in Khyber Agency, Peshawar and Kohat; Orakzais in Orakzai Agency; Turis and Bangash in Kurram Agency; Khattaks in east and southeast of Kohat; Wazirs in North Waziristan Agency; and Mahsuds in South Waziristan Agency… most of the famous names of the North-West Frontier, Afridi, Khatak, Orakzai, Bangash, Wazir, Mahsud, Turi – all these strike a chord in countless memories. The dialects of these tribes have something in common [the change of a to rounded o], and all are presented in genealogical legend as descended from a foundling common ancestor named Karlanri, not in the true Afghan line. These are preeminently the Pakhtuns, or Pashtuns [or Pathans]. They are the tribes who never fell under the effective sway of any recorded imperial authority and now form the backbone of the so-called tribal belt.”11

These tribes “have always traded with the cities and towns towards the Indus [i.e., towards the east], and not with Kabul or Ghazni to the west. … In a broad way, and with some local exceptions, all live east of the Durand Line [i.e., Pak-Afghan international border] within Pakistan.”

The authority of the various empires which claimed in the past to rule the Frontier actually only extended control over the plains and one or two of the passages through the mountains. Only the greater Mughals [1526-1707] seem to have thought it worthwhile to make a serious attempt to bring the hill tribes under domination as subjects, and … they failed. Even passage by a main route through the mountains had often to be asserted by force and with difficulty against the refractory tribes, which held the road in use at the time. An understanding of this fact explains the exclusion of this tribal belt as a whole from subjection to any external power – a freedom symbolized by the failure to impose on it any taxation. This, too, is the reason why a tribal form of society has persisted in a country which lay across the passage of countless invaders, including Alexander [356 BC –310/309] Chingiz Khan

10 S. Iftikhar Hussain, Some Major lPakhtoon Tribes Along The Pak-Afghan Border (Islamabad: Area Study Centre, University of Peshawar and Hans Seidal Foundation), 2000, p. 140. 11 For details of tribes and sub-tribes see Ridgway op. cit., pp. 50-246; and Hussain, op. cit., pp. 229-252.

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[1162-1227] and Tamerlane (Amir Taimur) [1336-1405)], the most famous conquerors in all history.12

All invaders who conquered South Asia failed to subdue them. They have defied Persians, Greeks, Turks, Mughals, Afghans, Sikhs, British, etc. These tribes and sub-tribes and clans defended their territories and honour religiously and persistently.

The Codes

The code which guides them has several unwritten laws and traditions but its main “maxims are those of mediation or protection (Nanawati), retaliation (Badal), and hospitality (Mailmastia).”13

1 – Nanawati 2 – Mailmastia 3 – Badal 1 - Nanawati - law of asylum Nanawati is the law of asylum, according to which asylum must be given to all fugitives, and even to bitter enemies if they come as supplicants.

2 – Mailmastia – Law of Hospitality

According to mailmastia he should show hospitality and protection to every guest.

3 – Badal – Law of Retaliation

The badal imposes upon him the responsibility of wiping out insult with insult: i.e. ‘an eye for an eye and a tooth for a tooth’. The last element in the Pathan code of honour is the main cause of feuds and vendettas which may last for generations.

12 S. Iftikhar Hussain, Some Major lPakhtoon Tribes Along The Pak-Afghan Border (Islamabad: Area Study

Centre, University of Peshawar and Hans Seidal Foundation), 2000, p. 240.

13Federally Administered Tribal Areas of Pakistan By Noor ul Haq, Rashid Ahmad

Khan, Maqsudul Hasan Nuri Published by Islamabad Policy Research Institute, 2005

Original from the University of Michigan Digitized 28 Aug 2008 ISBN 9698721126,

9789698721121 90 p.

8

FATA (Federally Administered Tribal Areas)14

Composition of Tribal Areas (Article 246 of 1973 Constitution)

The Tribal Areas as defined in Article 246 of the constitution are:

(a) Federally Administered Tribal Areas. (b) Provincially Administered Tribal Areas.

(a) FEDERALLY ADMINISTERED TRIBAL AREAS

Name of Agency/F.R Area in Sq. Miles. Population According to March 1981 Census (in thousand)

Main Tribes

Bawar Agency 498 289 Ultman Khel, Salarzai, Charmungi.

Mohmand Agency 887 164 Tarakzai,Halimzai, Khwaezai, Baezai,

Safi, Mullagori, and Utman Khel.

Khyber Agency 995 284 Afridi, Shinwari, Mullagori,

Orakzai Agency 403 359 Orakzai.

Kurram Agency 1305 294 Turi, Bangash,Ziamusht, Mengal.

N.W. Agency 1817 239 Utmanzai Wazir,Daur, Saidgi, Gurbaz.

S.W.Agency 2556 310 Mahsud and Ahmadzai Wazir.

F.R. Peshawar 101 37 Hassan Khel.

F.R.Kohat 363 57 Jawaki and Adam Khel.

F.R.Bannu 339 79 Jani Khel,Bakka.

F.R.D.I. Khan 1247 86 Bhittani, Sherani.

10511 2198

Agencies

1 – BAJAUR AGENCY 2 - KHYBER AGENCY 3 - KURRAM AGENCY 4 - MOHMAND AGENCY 5 - ORAKZAI AGENCY 6 - NORTH WAZIRISTAN AGENCY 7 - SOUTH WAZIRISTAN AGENCY

14 Modified Article 246 of 1973 Constitution

www.wikipedia.org/federallyadministeredtribalareas

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1 - BAJAUR AGENCY

INTRODUCTION

The origin of the word Bajaur is uncertain and nothing is exactly known as to when and how this name was given to this area. However, according to one version it was derived from the Persian word Baj (tribute) and awardan (to bring). Legend is that the area of Bajaur once belonged to a tribe called Arab upto the time of the Pathan conquest and was ruled by the Chief of Arab tribe, therefore, it denotes the area which paid tribute to the Chief, or which paid tribute to the Hindu dynasty of the day. According to the version of the common man of the area the word Bajaur denotes an area which has been ruled by powerful tribal chiefs with force Bajaur in the annals of history. However, the empirical facts and historical data support the first version about the origin of the word Bajaur. It’s administrative headquarters is at Khar town, at a distance of about 140 kilometers north of Peshawar connected through a metalled road via Mohmand Agency and Malakand Agency. The land mass of the agency lies between 34° 30' and 34° 58' north latitudes and 71' 11° and 71' 48° east longitudes. The green valleys of Bajaur Agency are situated in the north – west of NWFP. 15

RACE AND TRIBES16

The two major tribes inhabiting the agency are:-

a. Tarkanai

b. Uthman khel

They are the off shoots of Yousaf zai tribe. Tarkanai out-number the Utman khel as regards their population. However, Utman khel on the other hand occupy a large area. Tarkanai tribe is further sub-divided into six sections, namely, Salar zai, Mamund, Chamar kand & Charmang, Nawagai and ex-state of Khar. Similarly, Uthman khel have seven sections i.e. Aseel, Shamo zai, Mandal, Lar-trass, Bar-trass, Arang and Ali zai.

OCCUPATION

15 Extracted from http://www.fata.gov.pk/bajauragency

16 The topography of each agency is given in 1981and 1998 Census Reports of Federally Administered Tribal Areas (FATA) (Islamabad: Population Census Organisation Statistics Division, Government of Pakistan), 1984 and 2001. Also see Azam Afridi “Pakhtoons: Land and People” <http://www.geocities.com/RainForest/Vines/1945/I.html> retrieved on 16 January 2004.

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The people in the agency are not widely educated. They migrate to down districts in search of jobs or any other labour. Government services are a cherished source of livelihood for many. Agricultural farming, small scale business and working on daily wages basis are also major providers of job and sources employment in the agency.

ADMINISTRATIVE SET UP

The Political Agent is the over all in charge for the agency administration, assisted by Assistant Political Agents. The agency headquarter is located at Khar. Administratively, Bajaur Agency comprises of two sub-divisions, namely, Khar sub-division and Nawagai sub-division under two Assistant Political Agents. Khar sub-division has further been divided into three Tehsil, namely Khar, Salazai, and Uthman khel, while Nawagai sub-division consists of four tehsils, namely Chamar kand, nawagai, Mamund and Barang. Thus, all the seven Tehsils in the agency are under the charge of three Political Tehsildars and Political Naib Tehsildars.

2 - KHYBER AGENCY17

INTRODUCTION

Khyber Agency is named after the world famous Khyber Pass, which has served as the corridor connecting the Asian sub-continent with the Central Asia through Afghanistan. The location of this pass has given the agency and its people worldwide recognition and has made it the focus of attention of historians interested in this part of the world. The headquarters of the agency is located at Peshawar.

RACE AND TRIBES

Khyber Agency is inhabited by four tribes i.e. Afridi, Shinwari, Mullagori and Shimani. These hillmen can outpace any man in a deadly and manly struggle for existence. This explains their survival through the ages in the face of great conquerors. They are well armed warriors, who live in houses behind mud walls with a watch tower for each compound. Like other Pathans, these tribes have observed their own code of honour since time immemorial. The code imposes upon them three chief obligations Nanawati to admit: one as wrong and seek pardon from his enemy; badal, or the old doctrine of an eye for an eye and a tooth for a tooth, and melmastia, meaning hospitality to all. They are generally tall, stout and fair complexioned having high nose and prominent cheekbones. They are brave, hard and their springy steps stone denote their mountain origin. 18

17 Extracted from http://www.fata.gov.pk/khyberagency

18 Azmat Hayat Khan, the Durand Line –Its Geostrategic Importance (Islamabad: Area Study Centre,

University of Peshawar and Hanns Seidal Foundation), 2000, pp. 175-78.

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The Shinwaris are also tall and of strong built and fair complexion. All these tribes have similar martial qualities and observe the same code of honour. The Afridi tribe is further divided into eight clearly, distinct clans i.e. Adamkhel, Akakhel, Kamarkhel, Qamberkhel, Malik Dinkhel, Kukikhel, Zakhakhel and Sepah.

OCCUPATIONS

Generally, the people are not literate. Significant numbers of people are in the Middle Eastern Countries for their earnings and brought prosperity to the area. Most of the people are involved in business as shop keepers, merchants and transporters etc.

ADMINISTRATIVE SETUP

The Political Agent is the head of the agency. He functions as a District Magistrate and Session Judge and also as a Coordinator who coordinates the functions of all the nation building departments in the agency. The agency has three Sub Divisions i.e. Landi kotal, Jamrud and Bara with three Assistant Political Agents, seven Tehsildars and a number of other administrative functionaries. The headquarters of the Political Agent is at Peshawar but has also a Camp Office/Residence at Landi Kotal. The Assistant Political Agents have their headquarters at Landi Kotal, Jamrud and Bara respectively. The administration is run through Maliks, Khassadars and Lundgi holders (Sufaidresh). The tribal administration and system of justice is based on the concept of territorial, tribal (collective) and protective responsibility. Adjudication is through the Jirga system, which is something the tribesmen comprehend and accept. The substantive law is the Pakistan Panel Code whereas the Frontiers Crimes Regulation is the procedural law.19

In all the criminal and civil disputes two systems are followed i.e. Riwaj (the customary law) and Shariat (Islamic law). Riwaj is the code of tribal customs and almost all the cases are decided under the same. Even in the Frontier Crime Regulation, the council of elders (Jirga) base their verdict on Riwaj. The administration takes cognizance of only those offenes, which are committed in protected areas, and does not generally interfere in the offenses occurring between the tribes in the tribal territory of which no cognizance is taken. However, the administration does interfere in case of offenses taking place even in tribal territory, beyond the protected area, in cases in which state interest is involved. This interference could be direct, through the use of force, or indirect, i.e. through Maliks and Khassadars, by invoking the tribal/territorial responsibility depending upon the gravity of the offense.


University of Peshawar and Hanns Seidal Foundation), 2000, pp. 178.

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The Maliki system was introduced by the British to encourage pro-government and pro-administration tribal elders to exercise a strong hold and influence over their tribes. The Maliks used to work as medium between the administration and “Qaum”. The British had realized that they could not subjugate the independent and fierce character of the tribes by force only and therefore the Maliki system was introduced which not only sent a message to the tribes that any body loyal and accommodating would have a special status, but also, that cooperation with the government would entail regular benefits, recognition and of course influence in the tribe. A Maliki is hereditary and devolves on the son, and his son so on and so forth.

In Khyber there are 24 Maliks getting Rs. 1,811,619 per annum as allowances, Sub-tribe-wise break-up of Maliks are as under:20

Kuki Khel = 4, ZakhaKhel= 6, Qamber Khel

= 3,

Malikdin Khel

= 2, Aka Khel = 2, Sepah = 1,

Kamar Khel = 2, Shinwari = 3, Mullagori = 1

Lungi system, commonly known as “Sufaid Resh” in Khyber Agency is also a form of formal recognition although at a slightly lower level. A lungi signifies the holding of a position of favour with the government and of influence in the tribe. In Khyber there are 3630 Lungi holders (Sufaid Resh). The Lungi is for an individual and is not hereditary. In practice, however, the Lungi of a deceases Lungi holder is usually granted to his elder son.

Khassadar Force

In the twenties, the British Rulers intended to open strategic roads in different agencies. To guarantee the protection of the road, the British agreed to give allowances to the tribes in the form of Khassadaris. Accordingly each tribe/sub-tribe, through whose area the road was to pass, were given a certain number of Khassadars who were to be paid out of the allowances given to the tribe for the opening of the road. Like-wise, the Khassadars were raised in Khyber as well in the year 1920.

The Khassadars are generally ill disciplined, mostly un-trained and are a loosely organized force who are armed with the own weapon and have to use their own ammunition. They are given a pair of chapplies and a Mazri Cloth uniform once a year. They are the representative of the tribe to whom they owe loyalties rather than to the Political Administration. Every agency has its own rules and conventions for the Khassadari service. They are also a non-pensionable force.


University of Peshawar and Hanns Seidal Foundation), 2000, pp. 175-78.

13

The Khassadars were raised against the allowances given to tribes for opening of roads and generally responsible for the road protection. They are not supported to carry out Bramtas which during the British time used to be carried out with the help of scouts, who were at that time at the disposal of the Political Administration. The scouts of Khyber Agency were during those days considered as the private army of the Political Agent. The Khassadars only were associated as guides during the movement of scouts into tribal territory. However after partition of the Sub-Continent and with the change in the role of the scouts due to the withdrawal of the army from tribal areas the Political Administration has been left mostly to rely on the Khassadars for arrests and other such like duties. It is because, the availability of the scouts to the Political Administration has become very difficult. Besides, the reluctance of the Headquarter Frontier Corps, it also depends on the whims and caprices of the local Scouts Commandant to provide force to the Political Agent. This has proved to be a great set back to the administration in tribal areas and has made the task of the Political Agents more arduous and up-hill. Most of the operations and duties which the field officers have to carry out with the help of the Khassadars fail because of their unreliability and inherent deficiencies.

In Khyber there are 3264 Khassadars ranging in ranks from Subedar Major, downwards upto a Sepoy. They are appointed by the Political Agent who is their Commanding Officer as well. The recruitment is made from amongst the local tribes in the ratio of their tribal distribution which is known as Nikkat. The Khassadars are deployed for protection of strategic roads and other government utilities. They also perform guard duty, export duty and protection of various installations.

Revenue System

No revenue record of lands in Khyber Agency is available or maintained. Only the record of lands under Military compensation is maintained by the agency patwari at Landi Kotal.

3 - KURRAM AGENCY

INTRODUCTION

Kurram Agency takes its name from the river Kurram which passes through it. The headquarters of the agency is located at Parachinar. The agency lies between 330-20¢ to 340-03¢ north latitudes and 690-50¢ to 700-45¢ east longitudes. The Agency is bounded on the north and west by Afghanistan (the provinces of Ningarhar and Pukthia respectively), on the east by Orakzai and Khyber Agencies, on the southeast by Hangu and on the south by North Waziristan Agency. The agency is 115 kilometers long with a total area of 3.380 square kilometers. 21

21 Extracted from http://www.fata.gov.pk/kurramagency

14

RACE AND TRIBES

The population of Kurram valley consists of a number of tribes namely Turi, Bangash, Parachamkani, Massozai, Alisherzai, Zaimusht, Mangal, Kharotai, Ghalgi, Hazara. Turi are in majority followed by Bangash and others.

OCCUPATIONS

Generally, people are not literate and earn living by farming as tenants on land owned by others. However, surprisingly a significant number of locals are residing and working abroad and have brought prosperity to the area.


Executive

• Political Agent • Assistant Political Agent Upper Kurram • Assistant Political Agent Lower Kurram • Assistant Political Agent, Central Kurram • Tehsildar Mahal Parachinar • Tehsildar Alizai • Political Naib Tehsildar FR Kurram • Political Naib Tehsildar – I • Political Naib Tehsildar - II

4 - MOHMAND AGENCY 22

INTRODUCTION

Mohmand agency takes its name from the Mohmand tribe which lives in the area. The agency was established in 1951. Earlier this area was under the administrative control of political agent Khyber. The agency headquarter is located in Ghalanai. It lies between 34° 10' to 34° 43' north latitudes and 70° 58' to 71° 42' east longitudes. It is bounded on the north by the Bajaur agency, on the east by Malakand protected area and Charsadda district, on the sough-east by Peshawar district, on the south by Khyber agency and on the west by Afghanistan. The total area of the agency is 2296 square kilometres.

OCCUPATIONS 22 Extracted from http://www.fata.gov.pk/mohmandagency

15

The sources of income are very limited in general except agriculture and some trade/business. Most of the locals are earning their livelihood in the Gulf States.

ADMINISTRATIVE SET UP

The Political Agent is the over all in charge for the agency administration, assisted by Assistant Political Agents. The agency headquarter is located at Ghalanai. The agency is divided in two sub division and seven tehsils. The Political Tehsildar is the in-charge of each Tehsil.

5 - ORAKZAI AGENCY23

INTRODUCTION

The tribal area now forming Orakzai Agency was previously included in Frontier Region Kohat district and remained as such till 30-11-1973. The Biland Khel, a small pocket measuring about 6.5 square kilometers is also part of this agency and lies couple of kilometres off Thall, bordering North Waziristan and Kurram agencies. Responding to long standing demand of the Orakzais the then President of Pakistan announced the creation of Orakzai Agency on 3-11-1973 and was formally inaugurated on 1st December, 1973. Prior to its up gradation as an agency this area was administered as Frontier Region of Kohat district by the Deputy Commissioner, Kohat. The Orakzai Agency consists of two sub-divisions i.e., Upper sub-division and Lower sub-division. The Upper sub-division comprises two Tehsils i.e. Upper Tehsil and Ismailzai Tehsil, while the Lower sub-division also has two Tehsils i.e. Lower Tehsil and Central Tehsil. The land of the Orakzai tribes is located between 33° -33' to 33° -54' north latitudes and 70° -36' to 71° -22' east longitudes. It is bounded in the north by Khyber Agency, in the east by FR Kohat, in the south by Kohat and Hangu districts and in the west by Kurram Agency. The total area of the agency is 1,538 square kilometres

RACE AND TRIBES

Presently the Orakzai tribes consist of original Orakzai tribes i.e., Ismailzai, Daulatzai, Alizai, Muhammad Khel and Sultanzai clans and historical 'Hamsaya' tribes i.e. Ali Khel, MalIa Khel, Mishti and Sheikhan. The 'Hamsaya' presently claim that they can not be considered as 'Hamsaya' and has independent tribal status in their own right. In total there are about 24 major sections. The largest tribe is Ali Khel.

OCCUPATION

23 Extracted from http://www.fata.gov.pk/orakzaiagency

16

In common with other tribal agencies the literacy rate is low. Most of the tribes accordingly engage themselves in agriculture and raising of livestock. In the recent past most have traveled to the Middle East to work there. Many of them are in government services also.


The administrative set up in the agency consists of Political Agent who is overall incharge of the agency. The agency has two sub-divisions looked after by Assistant Political Agents. The four Tehsils of the agency are headed by Political Tehsildars and Political Niab Tehsildars. The Malik system introduced by the British government is the same in Orakzai Agency as functioning in other FATA. Maliks used to work like a medium between administration and the (Qaum) or tribe. A Maliki is hereditary and devolves on the son and his son so on and so forth, for which regular benefits and subsidies are sanctioned from time to time. Lungi system, known .as Sufaid Resh, is slightly lower form of Maliki. In Orakzai Agency there are 8,639 Maliks and lungi holders. Although most of all Pakistan Laws including Pakistan Penal Code and Criminal Procedure Code have been extended to the tribal areas, the predominant procedure applied in Judiciary is the Frontier Crimes Regulation 1901. More than 90 per cent of the area is inaccessible or tribal, in which the cases are decided by the tribesmen through a Counsel of Elders or Jirga, where it determines the guilt of the accused under the customary law and sentence is passed accordingly by Political Agent/Assistant Political Agent. The conviction under certain acts mentioned in the FCR may consist of imprisonment as well, while in other cases only fine can be imposed.

6 - NORTH WAZIRISTAN AGENCY 24

INTRODUCTION

It was in the year 1910 when North Waziristan Agency was constituted as a full fledged agency with its headquarters at Miran shah. It is inhabited by extremely gallant and valiant tribes of Wazirs and Daurs. The agency lies from 32.35 degrees to 33.22 degrees latitudes and 69.22 degrees to 70.38 degrees longitudes. It is bounded on the north by Afghanistan, Kurram Agency and Hangu District, on the east by Tribal Areas Adjoining Bannu District and Tribal Area Adjoining Karak and Bannu Districts. On the south by South Waziristan Agency and on the west also by Afghanistan. The total area of the agency is 4707 square kilometers.

RACE AND TRIBES

The chief tribes in North Waziristan are the Utmanzai Wazirs and Daurs. Besides, there are small tribes like the Gurbaz, Kharsins, Saidgis and Malakshi

24 Extracted from http://www.fata.gov.pk/nwagency

17

Mahsuds. These tribes, except Saidgis, are Pakhtoons. According to the tribal annals they are descendants of Karlaur, who in turn descended from Kais Abdur Rashid. As regards the ethnic origin some historians believe that they are semites, but it is the general belief that they are of Aryan origin. The traditions of the tribesmen however indicate that they are descendants of Karlan and Ghurghust, and are, therefore, generally accepted as being a tribe of Karlanri or Ghurghust Pathans. The Saidgis are the descendants of a Syed who accompanied the founder of the Wazir tribe. The Wazirs dominate the hilly tracts; Khaisora. Sherathala Plain, Kaitu valley, Lower stretches of the Kurram River and upper parts of Tochi valley beyond Kharakamar. They are divided into three main sections namely. Ibrahim Khel; Wali Khel and Mamit Khel. These sections are further divided into several sub-sections. The Daurs are divided into two main sections i.e.: Upper Daurs and Lower Daurs and the area occupied by them is also known as Upper Daur and Lower Daur. They have settled in the fertile Tochi valley, mostly on the left bank of Tochi River from Khajuri to Kharkamar. The Kharsins are affiliated with Bora Khel and Madda Khel Wazirs. They live near the Durand Line to the north-west of the agency flanked by Madda Khel Wazirs and Saidgis. Mahsuds are the cousins of Wazirs; both have common ancestor, viz. Wazirs. A section of Mahsuds called Bahlol Zai Malakshai occupy a small portion of Razmak surrounded by Bora Khel and Tori Khel Wazirs. The Saidgis occupy Zoi valley, Shawal. Dawegar and Dande plain near the Durand Line.

OCCUPATION

Due to the rugged nature of terrain and lack of education inhabitants look forward to government services. Sizeable number of people earn their livelihood by going abroad for labour. Local people have also invested in transport business.


The agency is under the general charge of a Political Agent who administers civil, criminal and revenue cases in accordance with Frontier Crimes Regulation and Customary Law. The North Waziristan Agency consists of three sub-divisions and nine Tehsils. Each of the sub-division is headed by an Assistant Political Officer/Assistant Political Agent. The Political Agent is assisted by three Assistant Political Agents in criminal cases and other official work including matters maintaining law and order in the agency. Assistant Political Agents assist the Political Agent in tackling problems of the agency. They perform their duties like a Liaison Officer between the Political Agent and the tribes. They also decide cases of minor criminal nature and civil suits. Political Tehsildars and Political Naib- Tehsildars are incharge of Tehsils and their main duty is to control the tribes and maintain law and order within their own areas. They are answerable to the Political Agent through the Assistant Political Agent. They deal with all cases occurring in the protected area of their respective Tehsils. Land revenue administration in some parts of the agency is carried on exactly on the same lines as in the settled districts of Pakistan. The Frontier Crimes Regulation is applicable in this area. Cases occurring in

18

the unprotected area are decided by the tribes themselves through their elders who are known as Maliks and Motabars. The Maliki system introduced by British government was the same in North Waziristan Agency as functioning in other FATA. Maliks use to work like a medium between administration and the Qaum or tribe. A Maliki is hereditary and devolves on the son and his son so on and so both for which regular benefits and subsidies are sanctioned from time to time. Lungi system known as Sufaid Resh is slightly lower form of Maliki. In North Waziristan Agency there are 1620 Maliks and Lungi holders.

7- SOUTH WAZIRISTAN AGENCY25

INTRODUCTION

Lying at the southern side of two Waziristans and named after the Wazir tribe. South Waziristan Agency is the largest in size of all the FATA bordering North West Frontier Province. It has two headquarters. Tank is the winter headquarter of the Agency while Wana is its summer headquarter. It is functioning since 1895 A.D. It is bounded on the north by North Waziristan Agency on the north-east by Bannu and Lakki Marwat Districts, on the east by Tribal Area Adjoining Tank. Tank District and D.I.Khan Districts on the south by Zhob district of Balochistan Province and Tribal Area adjoining D. I.Khan District and on the west by Afghanistan. The total area of the Agency is 6.619 square Kilometres.

RACE AND TRIBES

Mahsuds and Wazirs are the two main tribes of this Agency. There are also some Dotaris and other Powindah settlers in the south-west corner of the Agency between Thati to Zarmelan. The Bhittanis inhabit a strip of country along the south-east border of the Agency. Some western ethnologists consider the Wazirs a tribe of Rajput origin probably an Indian race with admixtre of some foreign blood like that of Seythians of Tartars. According to their own traditions, the Wazirs call themselves the descendants of Wazir who was the son of Sulaiman, the son of Kaakai, the son of Karian and grandson of Ghurgust. So they are usually described as being a tribe of Karlanri or Gurgust Pathans. From this common origin come the Wazirs, a title which properly includes both the Wazirs and Mahsuds but the word Wazir has now practically been appropriated by the former. The Mahsuds are divided into three main divisions and hence the term Dremahsuds. These are Alizai (Shabi Khel and Manzai), Shaman Khel and Bahlolzai. Each of these are divided into sections and sub-sections. These three divisions share benefits and losses equally according to what is known as Nikat. The Manzais are divided into Giddi Khel and Palli Khel. The Manzais have a small number of Syeds as their Hamsayas (neighbourers). They are said to have come either from Yaman or Turkistan. The Shaman Khel of Shah oar commonly known as "Shahoor Shaman Khel" are a mixed community of Khalli Khel and Char Khel but

25 Extracted from http://www.fata.gov.pk/kurramagency

19

are treated separately: The Marsanzai is a small tribe living in Shaktu but usually treated separately.

OCCUPATION

Majority of Wazirs and Mahsuds of South Waziristan are pastoral. The Wazirs breed a good race of horses and sheep and earn their livelihood from sheep rearing. A large number of Mahsuds are employed in the Army, as levies and Khassadars in Militia and scouts. Mahsuds have also taken to business in Tank and Dera Ismail Khan and run buses and trucks. The other articles of petty trade in this Agency are charcoal, wool, potatoes, chilghozas and a few varieties of locally grown fruits.


The civil administration of South Waziristan Agency has been functioning since 1895 under a Political Agent who administers civil criminal and revenue cases in accordance with the Frontier Crimes Regulations and Customary Law. The Agency is divided into three administrative Sub Divisions of Sarwakai, Ladha and Wana. These three sub-Divisions are further divided into eight Tehsils. Sarwakai is administered by Assistant Political Officer whereas Ladha and Wana Sub Divisions are administered by Assistant Political Agents. Each tehsil is headed by a Political Naib Tehsildar. The Malik system introduced by the British government is functioning in the Agency. Maliks used to work like media between administrations and the (Qaum) or Tribe. A Maliki is hereditary and devolves on the son and his son so on and so forth for which regular benefits and subsidies are sanctioned from time to time. Lungi system known as Sufaid Resh is slightly lower form of Maliki.

FR (Frontier Regions)

1 - F.R BANNU 2 – F.R D.I.KHAN 3 - F.R KOHAT 4 - F.R LAKKI MARWAT 5- F.R PESHAWAR 6 - F.R TANK

1 - F.R BANNU 26

INTRODUCTION

26 Extracted from http://www.fata.gov.pk/frbannu

20

The administration of the tribal area is looked after by the deputy commissioner Bannu district. It is located between 32˚56’ and 33˚16’ north latitudes and 70˚22’ and 70˚52’ longitudes. It is bounded on the north by Karak district, on the east by Bannu district, on the north by tribal area adjoining Lakki Marwat and on the west by North Waziristan agency. Its total area is 745 square kilometers. The total population of the area in 1998 was 19,593. There is no urban locality in the area. There were 160 villages in 1998.


The Bannu Frontier Region had been administered through the deputy commissioner with the district officer Frontier Constablary Daryoba as assistant political agent for the Ahmadzais and the political tehsildar for the Utmanzais wazirs and Bhittanis. However, in 1976 a separate post of assistant political agent was sanctioned for the entire tribal area under the administrative control of the deputy commissioner, Bannu. The Bannu Frontier Region is the federally administered tribal areas and all the financial liabilities for economic development and general administration, are borne by the federal government. The district coordination officer (the defunct deputy commissioner office) Bannu is actively supported by the Frontier Constabulary in addition to Khasadars engaged for political administration. The affairs of FR Bannu are largely regulated through for essentially involving Jirga system. Besides FCR, most of the cases of Bannu FR areas are decided by the local laws (Riwaj) and Shariat.

TRIBES AND RACE

The Trans frontier tribes under the political control of district coordination officer, Bannu, are part of the Derwaish Khel tribe of the Wazirs, and one (Dhnna) of the three subdivisions of the Bhitanis. The Wazir tribe of the Darwesh Khel, commonly known as the Wazirs, though the other part of Waziristan, the Mahsuds, is a Wazir tribe also, is composed of two clans, the uthmanzai and Ahmadzai. There are three divisions of the uthmanzian clan- Ibrahim Khel, Mohmit Khel and Wali Khel: and three sub-divisions of the Wali Khel- the Kabul Khel, which is now under the political control of the political agent , North waziristan, and the Bakka Khel and Jani Khel, which are under that of the district coordination officer, Bannu. The Ahmadzai clan has two divisions- Shin Khel and Kalu Khel: and the Kalu Khel has two sub-divisions – the Nasruddin Khel and Sperkai. The greater part of the Shin Khel and Sperkai Kalu Khel live on the Bannu border.27

The bhitanni tribe claims descent from Baitan (or Bitan) the third son of Qais Abdur Rashid, the founder of Pathan race. It has clans- Dhanna, Tatta and

27 Federally Administered Tribal Areas of Pakistan By Noor ul Haq, Rashid Ahmad Khan, Maqsudul

Hasan Nuri Published by Islamabad Policy Research Institute, 2005 Original from the University of

Michigan Digitized 28 Aug 2008 ISBN 9698721126, 9789698721121 90 pages

21

Waraspun. Of these Dhannas are under the political control of the district coordination officer Bannu.

2 – F.R D.I.KHAN

INTRODUCTION

The administration of the tribal area is looked after by the district coordination officer Dear Ismail Khan district. It is also known as Argha Shirani Area. As a whole it is located between 31˚30’ and 31˚34’ north latitudes and 69˚55’ and 70˚24’ west longitudes. The total area is 2,008 square kilometers. It is bounded on the north by South Waziristan Agency, on the east by Kulachi Tehsil of D.I. Khan district, on the south by Dera Ghazi Khan and Musa Khel districts of Punjab and on the west by Zhob district of Balochistan. The total population of FR D.I. Khan was 38,990 in 1998. There are no urban localities in the tribal area. 28

RACE AND TRIBES

The most important of the trans-border tribes under the political control of the district coordination officer, Dera Ismail Khan, are the two of the three Bhitanni clans; certain Ghilzai nomads and semi-permanent settlers: and the Largha Shiranis. The two Bhittanis clans under the political control of the DCO, D.I. Khan, are the Tatta and Waraspun. Besides the permanent settlements of Dotannis and Sulaiman Khel Ghilzai in the South Waziristan Agency, both these clans have semi-permanent settlements, during their passage between Afghanistan and India, in D.I. Khan and Dera Ghazi Khan districts in winter, and in Balochistan in the Summer: and Mian khel, or Miani, inhibit a portion of the Gomal Valley.

The Shiranis are divided into the Largha, or eastern, and the Bargha, or western, Shiranis. The Largha Shiranis are under the political control of the DCO, D.I. Khan: the Bargha Shiranis are included in the Zhob political agency, Balochistan. They are divided into three clans- Hassan Khel, Oba Khel and Chuhar Khel.

3 - F.R KOHAT29

INTRODUCTION

The administration of the tribal area is looked after by the deputy commissioner Kohat district. It is bounded on the north by the Tribal area adjoining to Peshawar district, on the east by Nowshera district and south by Kohat district and on the west by Orakzai agency. It is located between 33˚33’ and 33˚46’ north

28 Extracted from http://www.fata.gov.pk/frdikhan

29 Extracted from http://www.fata.gov.pk/frkohat

22

latitudes and 71˚21’ and 71˚50’ east latitudes. Its total area is 446 square kilometers. The British turned this area into a primary unit of political administration in view of its strategic importance as the only route, which opens, up the southern districts of N.W.F.P to Peshawar. Above all the region has international fame for its armament industry, known the world over.

RACE AND TRIBES

The Adam Khel are said to have been descendents of one Adam, the grand son of Karran’s younger son Usman, nicknamed “AFRIDA”. The other three grandsons of Usman, were Oola, Aka and Miri. Oola’s family is known as Khyber Afridis comprising Mir Ahmed Khel (Malik Din Khel and Kamber Khel), Sepaya, Zakakhel and Qamar Khel, while that of Aka named after him as Aka Khel. The third son Miri, not having sufficiently prospered in life submerged his name with that of his elder brother and that is why his descendents are now found in a subsection of Aka Khel Clan.

The main clans of FR Kohat are Galai khel and Jawaki branching from Adam Khel. Galai Khel divides into Tor Sapar, Zarghun Khel, Sheraki and Bosti Khel. Jawaki divide into Haibat Khel, Kimat Khel, Bazid Khel and Ashu Khel. Bosti Khel is the famous clan of Ajab Khan of “Ellis Fame”.

OCCUPATIONS

The main trade of the people is the manufacture and sale of rifles and revolvers, carried out by certain karigars or blacksmiths, living in the limits of Zarghun Khel section. Of late they have improved their workmanship to a great extent. Some of the Adamkhel Afridis are running transport business.

4 - F.R LAKKI MARWAT 30

INTRODUCTION

The administration of the tribal area is looked after by the district coordination officer Lakki Marwat district. It is a recent bifurcation from F.R. Bannu (1996). Prior to this it was part of F.R. Bannu. It is located between 32˚47’ and 32˚58’ north latitudes and 70˚19’ and 70˚28’ east longitudes. Its total area is 132 square kilometers. The total area was 6,987 in 1998. There were 44 villages in 1998. There are no urban localities in this tribal area.

5- F.R PESHAWAR 31

30 Extracted from http://www.fata.gov.pk/frlakkimarwat

31 Extracted from http://www.fata.gov.pk/frpeshawar

23

INTRODUCTION

The administration of the tribal area is looked after by the district coordination officer Peshawar district. It is bounded on the north by village Ghari Chandan of Peshawar district, on the south by Darra Adam khel of FR Kohat, on the east by village Jaroba, Cherat, Saleh Khana and Spin Khak of district Nowshera and on the west again by Peshawar district. It is located between 30˚39’ and 34˚32’ north latitudes and 71˚32’ and 71˚52’ east longitudes. Its total area is 261 square kilometres. The total population of region was 53,841 in 1998. There is no urban locality in the area. There were 39 villages in 1998.

RACE AND TRIBES

The transborder tribe under the political control of DCO Peshawar are the Bunerwal, Chagarzai (trans-Indus), chamlawal and Khundu Khel sections of the Yusafzai; the Uthmankhel; the Gaduns; the Mohmands; the Safis; and part of the Adam Khel clan of the Afridis. Yusafzai tribe is divided into two principal sections. Mandanr and Yusaf, each of which is usually reckoned as a separate tribe. The Uthman khel tribe section under the political control of DCO Peshawar is the But Khel section and the territories occupied by it are Ambahar, the Salala hills and Laman Uthman Khel. The Gaduns are a Pathan tribe, who reside partly on the southern slopes of the Mahaban Mountain, and partly in the Hazara district. They are termed Gadoons in the Peshawar district and Jaduns in Hazara district. The Mohmands are a large tribe, occupying the hilly country on the north-west border of the Peshawar valley. The Safis are a scattered tribe the main portion of which inhabits the Sur Kumar Valley which divides the Baizai Mohmand clans of Dawezai and Uthmanzai. The Safis hold the valley on sufferance from the Mohmands, but are dependents of the Khan of Nawagai (Bajaur). Two of the four divisions of the Adam khel clan of the Afridis are the Hassan khel and the Ashu Khel. There are two subdivisions of the Hassan Khel- the Akhorwal and the Jinakhori: and two of the Ashu khel- the Ali khel and the Mahmadi. The Kalla Khel section of the Ali Khel is under the political control of the political agent Khyber and the Akhoral sub-division of the Hassan Khel under that of the DCO, Kohat, from whose political control the Jinakhori Hassan khel, and the Kandao and Kandar sections of the Ashu khel, were tranffered to that of district coordination officer Peshawar.

6 - F.R TANK32

INTRODUCTION

The administrative setup of the tribal area is looked after by the district coordination officer Tank district. It is known as Bhittani Area. As a whole it is located between 32˚-13’ and 32˚40’ and 32˚40’ north latitudes and 70˚-20˚ and 70˚36˚

32 Extracted from http://www.fata.gov.pk/frtank

24

east latitudes. It is bounded on the north, south and west by South Waziristan agency and on the north-east by Lakki Marwat district and on the south-east by Tank district. Its total area is 1,221 square kilometers. The total population of the area was 27,216 in 1998. There are no urban localities in the area. There were 13 villages in 1998.

RACE AND TRIBES

The Bhittanis, as evident from their name, claim decent from Baitan, the third son of Qais, the founder, according to one doctrine, of the Pukhtoon race. They also inhibit F.R. D.I. Khan and F.R. Bannu, mostly the mountainous area on the borders of Tank and Bannu from the Gabbar Mountain in the north to the Gomal valley in the south. This tribe is divided in three sections: Tattao- at Jandola and Siraghar in the Dera Ismail Khan and some adjoining areas; Dhanna- on the Gabbar Mountain and in the Bannu F.R.; Waraspun- inhibinting the F.R. Dera Ismail Khan and some adjoining valleys. According to traditions, they were first living in Koh-i-Sulaiman, but the Ghilzais drove them out of their homeland and they settled where they are now. During the reign of Afghan Sultans of Delhi they enjoyed prestigious positions, and a large number of them used to serve in the Sultanate’s army. 33

CUSTOM AND HABITS

The bhittanis are of medium weight, wiry and active. They have no common chief. The proverbial wit of the country side expresses their innocence and thriftlessness.” The drum was beating in the plains and the Bhittanis were dancing on the hills”, “A hundered Bhittanis eat a hundered Sheep” etc. in physique they closely resemble Mahsuds. They have discarded the dress of their neighbors of the Waziristan highlands for the dress of the plains. It is very difficult to understand their local dialect.

OCCUPATIONS

Most of the Bhittanis tribesmen are serving in various government departments or in private firms while a few people of the area are farmers, using old agricultural methods.




25

(b) Provincially Administered Tribal Areas. 34

North West Frontier Province

Malakand Division

1. Chitral District.

2. Dir District.

3. Swat District (Which includes Kalam).

4. Malakand Protected Areas.

Peshawar Division

5. Tribal Areas adjoining Hazara District and the former State of Amb.

Quetta Division

6. Zhob District.

7. Loralai District (excluding Duki Tehsil).

8. Dalbandin Tehsil of Chagai District.

Sibi Division

9. Marri-Bugti Tribal Agency.

34 For details of tribes and sub-tribes see Ridgway op. cit., pp. 50-246; and Hussain,

26

Chapter - II

FCR (Frontier Crime Regulation) and Legal System in FATA

Introduction to FCR (Frontier Crime Regulation)

The Frontier Crimes Regulation comprises a set of laws enforced by British colonialists in the Pakhtoon-inhabited areas. They were specially devised to counter the fierce opposition of the Pakhtoons to British rule, and their main objective was to protect the interests of the British.35

The Frontier Crimes Regulation (FCR) forms the bulwark of the government machinery in the Federally Administered Tribal Areas (FATA) of Pakistan, which dates back its origin to the British colonial period in pre-partition India. Pakistan inherited the Tribal Areas as one of the successor states to British India after partition in 1947. The FATA comprise of 7 Agencies and 6 "frontier regions". The tribal areas have a semi-autonomous status, wherein special laws known as the Frontier Crimes Regulation (1901) are applied to administer justice in matters relating to interest of the state and public order. In cases where there are no direct stakes of the state involved, the tribes are left to their own usages and customs to settle criminal and civil disputes. British colonial rulers, in order to subdue the ever-refractory frontier tribes of the northwestern borderlands of British India, enacted the Frontier Crimes Regulation in 1901. The basic purpose of the FCR was security of the British territory that was situated adjacent to the Pashtun and Baloch borderland. Imperial service on the frontier was a nightmare for the British officers, particularly in the federally administered tribal areas (FATA), hereinafter the "tribal areas" of Pakistan. A difficult terrain, surprise ambushes of a diehard enemy, and the lack of land revenue were some of the factors that repelled the British officers. Therefore, special allowances were paid to them for rendering services in the northwestern tribal areas of British India. Why in contrast do their present day successors have a career dream to obtain a posting in the tribal areas, at least once?36

The FCR empowers the government authorities to arrest a person or members of a tribe, as the case may be, accused of the breach of peace or for the purpose of maintaining good behavior to execute a bond (sections 40, 41), failing which the accused or male members of his tribe can be imprisoned for a life term up to 3 years (sections 43, 44) without any right of appeal in any civil or criminal court (section 48). The term of imprisonment can be extended if the magistrate (political agent) is of the opinion that it should be extended further (section 45). The "Political Agent" conducts business with the border tribes on behalf of the central government of Pakistan. However, the FCR gives powers to the political agent - a civil servant - to act as prosecutor, investigator and judge in disposing crimes. He nominates members

35 Azam Afridi, <http://www.geocities.com/RainForest/Vines/1945/2.html> retrieved on 16 January 2004.

36 PIPS Database. www.pips.org

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of a council of elders, locally known as Jirga (section 8), to enquire into a dispute. However, the findings of the council of elders are not binding by the political agent and any non-acceptance of the findings of the Jirga by the Political Agent cannot be questioned in any other civil or criminal court (section 10, 60). Under sections 20 and 21 of the said regulation, entire members of a hostile or unfriendly tribe can be put behind the bars, their property could be seized and confiscated and their houses can be demolished (section 33, 34). Fines can be imposed and recovered from the whole tribe of which the accused happen to be a member (section 22) and public emoluments of persons or a tribe guilty of or conniving at crimes can be forfeited under section 26. The provisions of the FCR are in violation of the Universal Declaration of Human Rights (UDHR) and the Constitution of Pakistan (articles 8-28). Besides arbitrary and unbridled powers allotted to the political officials under the Frontier Crimes Regulation (FCR), financial attractions are the bedrock of a corrupt and intriguing administration in FATA. The absence of a transparent and accountable fiscal system works as a smoke screen for collecting illegal taxes in the name of welfare funds or Chanda (donation) by the political authorities in the different Agencies such as the Bajaur Welfare Fund, Momand Welfare Fund, Agency Development Welfare Fund (Khyber) and the South Waziristan Social Welfare Fund. These funds are never audited and the Political Agent, like the Mughal Mansabadar (district officer appointed by the Mughal kings in India) of the past, has the sole authority regarding its usage. 37

There are chains and barriers across roads at various locations in each district, read agency, to collect "taxes", prevent "smuggling", and control "anti-social elements". Cross-border trade, officially called smuggling, is the fundamental subsistence economic activity of the majority of the population in FATA. The administrative headquarter in each Agency is the transit center for goods that are meant for Afghanistan, and which instead boomerang into Pakistani markets after going through certain paper work at the Pak-Afghan border. Additionally, the political authorities issue permits to export food items such as dairy cattle, poultry, and wheat. The "taxes" collected on these commodities at various transit routes in FATA are estimated approximately in millions of dollars annually. But even the Central Board of Revenue (CBR) dares not to recognize such a huge loss to the national exchequer. There is a discreet silence in each responsible quarter of the government about this oversight, for obvious reasons. Another source of illegal funds at the disposal of the "agency administration" is the 'Teega Fund' composed of collective fines imposed on tribes for non-cooperation with the government machinery and deductions made from salaries of 'Khasadars' - a security force raised from local influential families - on the pretext of absence from duty form the "teega fund". There is no audit and no rules or regulations for the administration of this fund. The khasadar force has degenerated to such an extent that posts are sold outright and even the salaries of the khasadars fill the pockets of the higher officials of the "Levies"

37 PIPS Database. www.pips.org

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and the political officers. The khasadars are content to get a pension without salary and without the burden of duties. 38

The most intriguing component among the sources of illegal income in FATA is the contracting system for the execution of public works. The contractors are not pre-qualified and no tenders are issued for contracting a work. Contractors are nominated by the "political administration" for execution of development works. The agency officer or political agents as they are called, have the major say in the site selection for developmental work and contractual agreements. In the line of beneficiaries of development works stand influential elders (maliks), officials of the "line departments" i.e. education, health, public works, and the political administration and the contractors. No reliable statistics are available but federal funds and donor's aid money meant for anti-narcotics projects has produced unsatisfactory results in terms of development in proportion to the amount of allocation. In addition to the political authorities, there are other government departments that are also milking the FATA cow.

FCR – Historical Background

The FCR dates back to the occupation of the six Pakhtoon-inhabited Frontier districts by the British in 1848. The regulationwas re-enacted in 1873 and again in 1876, with minor modifications. With the passage of time, the regulation was found to be inadequate and new acts and offences were added to it to extend its scope. This was done through promulgation of the Frontier Crimes Regulation 1901.

The British devised the FCR as an instrument of subjugation. It was meant to discipline the Pakhtoon population and to establish the writ of the colonial authority. In drafting the regulation, the British relied upon some customs and traditions prevailing in the tribal belt, but these traditions were distorted to suit the government's plan of securing convictions at will. FATA was the most troubled area for British Government until 1947.The Government of Pakistan also had to launch operations in FATA during last 57 years many times. Recently, several hundred Pakistani military personnel died fighting in this area in pursuit of Al-Qaeda. Corrupt Pakistani officials and fugitives also take refuge in this area.

Part XII of the Chapter 3 Tribal Areas (Articles 246 – 247) of the Pakistani Constitution deals with the federally administered areas. According to this article, the President of Pakistan can cease FATA’s special status. Pakistan got independence from the British in 1947, and now it is time for the FATA to get independence from British Laws. General Musharraf has a historical opportunity to suspend FATA’s special status and unify it with the rest of Pakistan.

FCR - Constitution of Pakistan 1973.

38 IPRI Database. www.ipripak.org

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Article 247 (7) – Constitution of Pakistan 1973

The constitution of a country protects the fundamental rights of its citizens. Article 247 (7) of the constitution bars Pakistani courts to exercise their jurisdiction in the Federally Administered Tribal Area (FATA); due to this judicial limitation tribesmen convicted under the Frontier Crime Regulations (FCR) cannot appeal in superior courts against the judgments passed by the political agent.

Article 247 (5) – Constitution of Pakistan 1973

Article 247 (5) of the constitution clearly states: “Notwithstanding anything contained in the Constitution, the President may, with respect to any matter, make regulations for the peace and good Government of a Federally Administered Tribal Area or any part hereof.” Unfortunately, the Federal Minister for Law and Justice was not even aware of this clause.

FCR - Composition

The FCR comprises six chapters, 64 sections and three schedules, the FCR-40 being the most notorious among them.

FCR – Section 40

The FCR 40 deals with collective responsibility issues, i.e. the PA can punish any tribe or sub-tribe whenever he deems fit. This means if some body damages a government property in Area A, the PA can punish people from Area B on mere suspicion and impose heavy penalties. If a crime takes place in area C, the tribe living in the area is responsible for redemption, even though miscreants or rivals might be responsible for the act.

FCR - Promulgation of the 1956 constitution 39

In the decades following the promulgation of the 1956 constitution, the FCR has frequently come under review in the courts for repugnancy to fundamental rights. Successive judgments of the superior courts declared various provisions of the law void and inconsistent with fundamental rights. Such judgments were Dosso vs. State (PLD 1957 Quetta 9), Toti Khan Vs DM Sibi (PLD 1957 Quetta 1), Abdul Akbar

39 Such judgments were Doso v. State (PLD 1957 Quetta 9), Toti Khan v. DM, Sibi (PLD 1957 Quetta 1), Abdul Akbar Khan v. DM, Peshawar (PLD 1957 Pesh 100), Abdul Baqi v. Superintendent, central prisons, Mach (PLD 1957 Karachi 694), Khair Muhammad Khan v. Government of WP (PLD 1956 Lahore 668), and Malik Mohammad Usman v. State (PLD 1954 FC 228).

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Khan vs DM Peshawar (PLD 1957 Peshawar100), Abdul Baqi vs Superintendent, Central Prisons, Machh (PLD 1957 Karachi 694), Khair Muhammad Khan vs Government of WP (PLD 1956 Lahore 668) and Malik Muhammad Usman vs State (PLD 1965 Lahore 229).

State vs Dosso (PLD 1958 SC 533)

This judicial scrutiny, however, subsided with the Supreme Court verdict in the State vs Dosso (PLD 1958 SC 533), which justified the abrogation of the 1956 Constitution on the doctrine of "revolutionary legality". No serious challenge has ever been posed to the FCR since the revival of the constitution in subsequent years.

The result is that the FCR thrives despite its failure to meet the test of compatibility with international human rights principles and the constitution of Pakistan and children as young as the two-year-old Zarmina are convicted under this anachronistic law.

Fundamental Rights in Constitution of Pakistan 1973

The very preamble as well as Article 2-A and 175 of the constitution provide for an independent judiciary in the tribal area, but judicial authority has been vested in the executive alone. The constitution protects the fundamental rights of citizens by giving them the right to approach the high courts and the Supreme Court. The tribesmen convicted under the FCR, however, cannot file an appeal against the political agent's judgments in the superior courts. This is due to Article 247 (7) of the constitution, which bars the exercise of jurisdiction of the courts in the Federally Administered Tribal Area (FATA). Thus, while fundamental rights remain theoretically available to FATA residents, Article 247 (7) places a bar on the jurisdiction of the courts that precludes the enforcement of fundamental rights. There are numerous provisions in the FCR which makes it a brutal law. The seizure and confiscation of property and arrest or detention of an individual without due process and debarring a person in the tribal area from entering the settled district under Section 21, removal of a person from his residence or locality under Section 36, imposition of fines on the entire community for crimes committed by individuals under sections 22 and 23 are some of the provisions that make the FCR a draconian law. 40

Provisions of FCR

According to Dr Faqir Hussain, secretary Law and Justice Commission of Pakistan, all the FCR provisions - substantive as well as procedural - e.g. selection of jirga members (section 2), trial procedure in civil/criminal matters (sections 8 & 11), demolition of and restriction of construction of hamlet, village or tower in the

40 IPRI Database. www.ipripak.org

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Frontier (section 31), method of arrest/ detention (section 38 & 39) security for good behaviour (sections 40, 42), imposition/collection of fine (sections 22-27), etc are in violation of the Constitution.

He says the FCR is contrary to Article 8 of the constitution, which provides that any law or custom or usage having the force of law, in so far as it is inconsistent with fundamental rights shall be void. He says the provisions of the FCR are violative of several articles of the constitution, such as Article 4 (the right of an individual to be dealt with in accordance with the law), Article 9 (security of person), Article 10 (safeguards as to arrest and detention), Article 13 (protection against double jeopardy, self- incrimination), Article 14 (inviolability of the dignity of man, prohibition of torture for the purpose of extracting evidence) Article 24 (protection of property rights) and Article 25 (equality of citizens).

Case Laws 41

1 - Toti Khan v District Magistrate Sibbi and Ziarat

The Balochistan High Court, in Toti Khan V District Magistrate Sibbi and Ziarat termed the FCR repugnant to article 5 and void under article 4 of the Constitution of Pakistan.

2 - Abdul Rauf v Government of NWFP

The Peshawar High Court, in Abdul Rauf v Government of NWFP, made a similar judgment and termed it void under article 4 of the Constitution.

3 - Muhammad Ishaque Khosti v Government of Balochistan

In Muhammad Ishaque Khosti v Government of Balochistan, the Quetta bench of the Federal Shariat [Islamic] Court declared the FCR un-Islamic and recommended its repeal. Despite these categorical judgments by the superior judiciary against the FCR, it still remains a decisive law in the administration of justice for a population of approximately 7 million.

4 - Sumunder vs State (PLD 1954 FC 228)

Justice A. R. Cornelius referred to FCR proceedings as "obnoxious to all recognised modern principles governing the dispensation of justice" in the case of Sumunder vs State (PLD 1954 FC 228).

41 Source: Peshawar High court Library

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FCR – Independence of Judiciary 42

Consequently, the law contains no concept of an independent, impartial judicial

authority or a court of law to dispense free and fair justice. This is contrary to the

mandate of the Constitution, and a vital safeguard is consequently altogether missing

from the FCR. Thus, while the law incorporates the custom of trial by a jirga, the

selection of jirga members is left to the executive authority, and the findings of the jirga

are not binding. This way the executive was made the ultimate authority and final arbiter

to initiate trial, prosecute offenders and award punishments. Surviving the exit of the

British and the independence of the country, the FCR negates constitutional provisions

and international human rights practices in many respects.

Bail under FCR

The Federally Administered Tribal Areas (FATA) have a separate legal system, the Frontier Crimes Regulation (FCR), which recognizes the doctrine of collective responsibility. Authorities are empowered to detain the fellow members of a fugitive's tribe, or to blockade the fugitive's village, pending his surrender or punishment by his own tribe in accordance with local tradition. Although persons accused of crimes are entitled to bail, there have been a number of restrictions placed on this right in cases involving alleged threats to national security. In late 1992, the law requiring automatic bail for anyone in jail for two years who had not yet been convicted was rescinded, and the high courts were prohibited from hearing bail applications from persons facing trial in the special courts set up in 1975 to try terrorists. A Pakistani jurist commented: "The government can now arrest anyone, call him a terrorist, and keep him in prison indefinitely."

FCR – Human Rights

Innocent men, women and children become victims of the draconian Frontier Crime Regulations law. Children as young as two years old have been convicted under the FCR. FCR is a black law and contrary to the Constitution and international human rights conventions. Under Article 1 of the Constitution, FATA is a part of Pakistan; therefore, no law could be allowed to operate in tribal areas, which is not inconformity to the human rights clauses of the constitution. Family members are handed a jail term for no crime of their own under FCR. Innocent people are sentenced to jail for the alleged crimes of their father, uncle or any of their blood relatives. It is the government that launches operation against those innocent victims

42 S. Iftikhar Hussain, Some Major lPakhtoon Tribes Along The Pak-Afghan Border

(Islamabad: Area Study Centre, University of Peshawar and Hans Seidal Foundation),

2000, p. 163.

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if they cannot produce the sought after. Government can raze the houses of criminals and their relatives to ground as a punishment under the FCR.

FCR - Juvenile Justice under 43

Children as little as two years have been convicted under the draconian FCR that contravenes all principles of human rights.

Two-year-old Zarmina sits in her mother's lap on the veranda in front of the barrack reserved for women prisoners at the Central Jail, Haripur. She begins to cry when she hears the sobs of two children nearby, seven-year-old Iran Khan and his eight-year-old brother Tahir Khan. Tears roll down the children's cheeks as a sympathetic visitor to the jail asks them about their living conditions at the prison. Convicted under Section 40 of the Frontier Crimes Regulation 1901 (FCR), the innocent Zarmina was sentenced to three years imprisonment at the North West Frontier Province prison. According to the official record, Zarmina was convicted on May 5, 2004, along with her mother Hukam Jana, seven-year-old sister Wazir Azam, eight-year-old sister Islam Bibi, three-year-old brother Khalil Muhammad and nine-year-old brother Sadiq Muhammad.

Zarmina and her family members were handed a three-year jail term for no crime of their own. They were sentenced for the alleged involvement of their father, Qadir Khan, and uncle, Arsal Khan, in a case of kidnapping for ransom. The NWFP government had launched a huge operation in their native Lakki Marwat for the two proclaimed offenders in which more than100 houses of gang members and their relatives were razed to the ground. The two brothers Iran and Tahir, however, were put behind bars simply because they happened to live in the neighborhood and were visiting Zarmina's family when the administration raided the house to arrest the alleged kidnappers. When they could not find the outlaws, the administration arrested 16 of their family members - including their aged mothers, children and wives - and sent them to jail under the Frontier Crimes Regulation. According to the official record, 44juveniles under 18 year of age are at present serving jail terms under the FCR in various jails in the NWFP. In addition, five children are confined to jail while their cases are being tried under the FCR. The Deputy National Coordinator of the Society for the Protection of the Rights of the Child, Arshad Mahmood, however, contends that more than 70 children are imprisoned under the FCR. He asserts that the official figure excludes those inmates who have crossed 18years of age in prison and have now been shifted to the adult section. Children are not the only victims of the draconian law. Many women have also been arrested and convicted under the FCR, 11 serving their terms in Haripur jail alone. The Central Jail DI Khan and Central Jail Peshawar also house many inmates convicted under the FCR.

43 S. Iftikhar Hussain, Some Major lPakhtoon Tribes Along The Pak-Afghan Border (Islamabad: Area

Study Centre, University of Peshawar and Hans Seidal Foundation), 2000, p. 142.

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FCR – Crimes against Women 44

The FCR absolutely ignores crimes against women, (not even a single woman reported a case under the FCR so far), despite the fact that maximum crimes in FATA are related to women. Honor killing, child marriage, swara marriage (a tribal custom to give women in marriage to the aggrieved party in consideration for settling a dispute), exchange marriages and "bride price" are still accepted norms in FATA without any legal remedies. Women are not represented in the jury or justice system in the tribal areas. Even more important than the legalistic approach about FCR is its impact on the social development of the tribal areas. Considerable changes have taken place in the economic conditions of the people of tribal areas that require corresponding legal, administrative, and political changes. However, the FCR has arrested the growth of the tribal areas and is the major obstacle in the way of a smooth and peaceful transition. To retain and protect its vested interest, the administration, having the lethal weapon of FCR at its disposal, is the great patron of strengthening conservative and patriarchal values. It would be too unfortunate if the policymakers at the top fail to realize that the first step towards meaningful reforms in FATA is the amendment in or abolition of the FCR, turning the FATA into PATA (provincially administered tribal areas), and introduction of the local government system, so that the people are given a sigh of relief from an oppressive and inhuman administrative and legal yoke.

Government statistics show almost 60% of the population below the poverty line. Agriculture is meager and cannot become a source of subsistence for an ever-increasing population. Conservatism and illiteracy are rampant. There is a complete lack of trust between the political administration and the general public - even the mutual trust between the loyal maliks and the administration has been lost. As FATA attracts the attention of the federal government and major donors, it is extremely important to build a new system of governance that is primarily geared towards public service. It is essential to the concerns of stakeholders including major donors of financial aid for the development of the tribal areas. This is the least that can be expected from the government in order to address issues like poverty alleviation, social sector development and the gender question in FATA. The sooner this is done the better.

FCR - Inhuman Regulations

Frontier Crimes Regulations (FCR) should be completely eradicated from FATA, observed the common people in a survey at Landikotal. Malik Fateh Khan observed that FCR was a draconian law which has debarred the tribesmen from all their basic human and political rights for the last more than one century. He said that



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the tribal people should be united to demand a separate province for FATA, which he said, was full of all resources and talent. He said that he was himself a malik but was happy when he heard about the removal of FCR from FATA. Malik Yousaf Khan in his views said that FCR was against humanity and Islam that is why he regretted that why the rulers in the past half a century could not realize the bad and terrible aspects of it. He demanded that FATA should be merged into the NWFP so that the power of Pukhtoons could be increased and united. He said that the rulers and political administration had always exploited their resources and blamed them in return for the misdeeds of the bureaucracy. Malik Yousaf Khan advised the tribal people to get united and don't disperse on the issue of FCR. He favoured that it should be completely eradicated from FATA which was a hurdle in their progress.

Sadullah Khan afridi sadi that it was in the best interests of the tribesmen to demand a separate province Qabailistan. He said that developing divergent opinions on the removal and replacement of FCR would cause delay in changing the system. Islam Gul Afridi a social worker and journalist also said that merging of FATA in the province would produce negative and worse results. He said that FATA should be given a separate identity as the tribesmen had different cultural and traditional values and added that Political parties in NWFP would also resort to their exploitation, so he said that tribal people could not sustain to wage another struggle for their democratic, human and constitutional rights. Majority of the people are agreed upon to have a separate identity and elected body whether it should be in form of a separate province or an elected tribal council. A very short number of people who have privileges from the system in FCR are disappointed over the announcement of Prime Minister Yousaf Raza Gillni to eliminate FCR from FATA. He educated, social, political and religious people are of the view that FCR should be uprooted by hook or by crook, and they termed it a break to their development in FATA.

LITIGATION UNDER THE FCR 45

Background

The Government of India Act, 1935 had special provisions for Tribal/ Special Areas. However, the Provisional Constitution Order 1947 did not have these provisions. In Chapter 2 of the Constitution of 1956, in the territorial clause on Pakistan, the Tribal Areas and Frontier Regions were mentioned along with NWFP. In the Constitution of 1962, higher judiciary had jurisdiction over Tribal Areas/ Frontier Regions but later on an amendment was made in Article 223 (5) to erase the jurisdiction of higher judiciary in the Tribal Areas. The Constitution of 1973, for the first time, made a territorial and geographical division of the Tribal Areas, bifurcating



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them into Provincially Administered Areas (PATA) and Federally Administered Tribal Areas (FATA). The FATA also included special regions called the Frontier Regions. Malakand Agency which was established in 1895 was included in PATA, whereas Bajaur Agency and Orakzai Agency were included in FATA. The FATA included seven Agencies and five Frontier Regions.

History of litigation under the FCR

There was no regular court procedure before 1970. Most of the cases in the Tribal Areas were tried under Section 40 of the FCR. The court procedure, which is in vogue in tribal areas today, started in 1970. It is also important that till 1978 Assistant Political Agents could not exercise the powers under the FCR that they now exercise. Originally an Assistant Political Agent was called Assistant Political Officer (APO), and he had no judicial powers till 1978 when Assistant Political Agents were declared Assistant District Magistrates (ADM). Divisional commissioners at D. I. Khan and Peshawar had power of revision. Cases of South and North Waziristan Agencies went to the Commissioner of D.I. Khan for revision while cases of Khyber, Kurram and Momand would go to the Commissioner of Peshawar. About a decade ago certain reforms were made in FATA in relation to enforcement of FCR. A special tribunal was formed, called FCR Tribunal, comprising Secretary Law, and Home Secretary to NWFP Government. At present all revision petitions in FATA are made to the FCR Tribunal at Peshawar. The memorable cases registered under FCR include the incident of abduction of Ms. Ellis by Ajab Khan Afridi from Kohat Fort. The case was registered in Khyber Agency on April 14, 1923. But there was no trial or conviction. One still hears references to the orders of British Political Agent at Khyber Agency which made it mandatory for proclaimed offenders in Khyber Agency to get a permit from his office before they could enter the British territory, which could mean that the provisions of FCR were not applicable to the present FATA in 1930. The case of the murder of Muhammad Boota of Gujranwala, bearing number 2903/B-1 (1970), was decided in four months on April 4, 1970. The accused was convicted and sentenced to imprisonment for four years and fined Rs.6,000. This was the first case of jirga award. Before that the Political Agents did not constitute jirgas in murder cases. Trials for drug offences started in FATA only in 1980.

Cases tried in Khyber Agency 46 The following figures are related to civil and criminal cases tried in the Khyber Agency.

Criminal cases 1970---6; 1971---10; 1972---8; 1973---7; 1974---8; 1975---6; 1976---7; 1977---6; 1978---7; 1979---7; 1980---6; 1981---7; 1982---3; 1983---1; 1984---7; 1985---4; 1986---1;

46 Source: Peshawar High Court Library

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1987---10; 1988---10; 1989---1; 1990---14; 1991---3; 1992---10; 1993---2; 1994---8; 1995---4; 1996---6; 1997---6.

Civil cases 1970---65; 1971---33; 1972---72; 1973---46; 1974---26; 1975---29; 1976---0; 1977----0; 1978---32; 1979---0; 1980---0; 1981---2; 1982---2; 1983---0; 1984---1; 1985---1; 1986---1; 1987---2; 1988---2; 1989---0; 1990---0; 1991---1.

Cases registered before the FCR Tribunal

Total cases Registered in 2003 --- 152; cases decided= 122 Kurram Agency; Civil = 56; Criminal = 11. Bajaur Agency; Civil = 15; Criminal = 6 Khyber Agency; Civil = 2; Criminal = 4. Mohmand Agency; Civil = 6; Criminal = 2. Orakzai Agency; Civil = 2; Criminal = 4. North Waziristan; Civil = 5; Criminal = 8. South Waziristan; Civil = 2; Criminal = 4. FR Kohat; Civil = 4; Criminal = 2. FR Bannu; Civil = 2; Criminal = 3. FR DI Khan; Civil = 3; Criminal = 2. Total cases registered in 2004 = 208; cases decided --91 Kurram Agency; Civil = 73; Criminal = 31; Khyber Agency; Civil = 7; Criminal = 17; Bajaur Agency; Civil = 25; Criminal = 6; Mohmand Agency; Civil = 2; Criminal = 1; Orakzai Agency; Civil -1, Criminal –5;

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North Waziristan; Civil 2, Criminal 15- South Waziristan Agency; Civil Nil, Criminal 7; FR Peshawar; Civil Nil, Criminal 3; FR Bannu; Civil Nil, Criminal 2; FR DI Khan; Civil Nil, Criminal 1; FR Kohat; Civil 8, Criminal 2.

There are three types of criminal cases-- murder, car lifting and kidnapping. The murder cases are fewer than car- lifting and kidnapping cases. There are two kinds of civil cases, i.e. property and money disputes. Most of the money cases are related to illegal transactions like drugs, etc.

Constitutional status of FCR 47

According to Dr Faqir Hussain, Secretary of Law & Justice Commission of

Pakistan, the history of FCR dated back to the occupation and annexation of the six Frontier districts housing the Pakhtoons by the colonial government in 1848. Initially, the ordinary civil and criminal law, in force in British India, was extended to such districts. However, the rate of conviction under the ordinary criminal law was very low. This led the British administration to devise a special law for the Pakhtoon region and the first FCR of 1871 was enacted, "This regulation was re-enacted in 1873 and 1876 with minor modifications. With the passage of time the regulation was found to be inadequate: hence its scope was extended by adding new acts and offences to it. This was done through promulgation of the Frontier Crimes Regulation 1901." Article 1 of the Constitution included FATA in the territory of Pakistan. Article 247 prescribed the manner and method of administering FATA. The Article stated that the executive authority of the Federation extended to FATA and that the Governor on the direction of the President shall administer it. Article 247 excluded the tribal areas from the jurisdiction of the Supreme Court and High Courts except when Parliament by law otherwise provided. 48

As the fundamental rights given in the Constitution extended to the whole of

Pakistan, these rights also extended to FATA as the area was part of Pakistan. However, enforcement of these rights was through the high courts and the Supreme Court under Article 199 and Article 184(3) respectively. "It means that whereas fundamental rights are available to the residents of FATA, their enforcement is





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precluded by the bar to the jurisdiction of the courts in such territory," judging by the standards of international human rights principles, the norms practised in civilized states and the fundamental rights guaranteed in the Constitution of Pakistan, the FCR failed to meet the test of compatibility." the British devised the regulation as an instrument of subjugating the tribes and disciplining the Pakhtoon population. While devising it, the government relied upon some of the customs and traditions prevalent in the tribal belt, but such customs and traditions were twisted to suit the government plan of securing convictions. The selection of Jirga members, was therefore left to the executive authority, and the findings of the Jirga (a council of elders acting as a jury) were not binding. the trial ,including appellate and revision authorities are from amongst the Executive and the law contained no concept of an independent judicial authority or a court of law to dispense free and fair justice because various sections of the FCR are in conflict with the provisions of the Constitution.

Social impact of FCR 49

Three important elements constituted the justice system in FATA:

1. Role of Jirga in the FCR; 2. Role of the Political Administration; and 3. The law of FCR.

The Jirgas constituted under the FCR were different from the traditional Jirgas.

An FCR Jirga could only put forward recommendations that were not binding on the Political Agent. The Jirga was believed to be better than normal courts for various reasons, such as: the Jirga members had information about the event; the members were aware of the traditions; the proceedings were informal; and, it was a cheap source of justice. Basic disadvantages of the FCR's Jirga, is that it does not correspond to the basic norms of justice. Sometimes the Jirga members had preconceived designs and sometimes the vision of the Jirga members was not adequate for a particular dispute. The Jirga members could also become partisan, especially when their clans and sub-clans were involved. The role of the political administration is that the Political Agent is the executive head, magistrate, sessions judge, and revenue magistrate, and most of the powers are concentrated in a single office. When a person performed different executive and judicial functions at the same time, the justice system was invariably compromised. Due to vast functions of a Political Agent the adjudication of cases lingered on for years. In longstanding disputes, the Political Agents always play safe and they never tried to resolve disputes. The government believed a good administrator/ political agent is the one who dealt with the tribal people with an iron hand. the administration always

49 IPRI DATABASE WWW.IPRIPAK.ORG

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consider the inhabitants of FATA as their subjects and not citizens of this country. The colonial rulers, in order to subjugate the people of these areas, introduced the FCR and now there is no rationale behind the continuation of such black laws. Under Article 175 of the Constitution, the judiciary should be separated from the executive, but in the FATA this had not been done. the FCR is violation of the basic ideals of the justice system a person arrested under it was not considered innocent unless proven guilty. The due process of law to prove a person guilty was not followed under the FCR. And the burden of proving himself innocent was on the shoulders of the accused person, the concepts of territorial responsibility and collective responsibility could not be imagined in a civilized society. " How can a person be convicted for the wrongs committed by a member of his tribe?"50

It is a normal practice that while assigning any responsibility to a person he was

also given some powers, but in the FATA the inhabitants were made responsible for protecting the interest of the government but without assigning any powers. All over the world governments were responsible for the safety of their citizens, but in FATA the inhabitants were responsible for the safety of the government. Dr. Bangash, who was a member of the FATA Reforms Committee, in a meeting of HRCP highlighted various recommendations put forward by the committee for reforms in the tribal areas. One of the recommendations was that judicial functions should be separated from the executive and judicial officers should be appointed out of the legal cadre. He said that as the FCR Jirga had flaws in it, they had recommended that the Jirga should be declared to be an independent forum. He added that they had not recommended abrupt abolition of the FCR as the example of PATA was before them where after the superior courts had struck down the PATA Regulations a legal vacuum had emerged. He demanded that a high court bench should be established for FATA.

Press under the FCR

Mr. Ibraheem Shinwari, correspondent of the daily Dawn and a member of the Tribal Union of Journalists, in one of his presentation in HRCP stated that the harsh provisions of the FCR did not allow the bringing out of any newspaper, journal or any other publication in the tribal area. He stated that FCR was an infamous law that the political administration wielded, brandished and used to the maximum effect to stifle the voice of reason and prevent truth from reaching the outside world. He said: "Cover up, do not let facts be divulged, seems to be the motto of the political administration. This has been the corner-stone of the policies of every political administration in all tribal agencies since independence. The motive behind this charade is simple to understand and it stems from self-interest." Mr. Shinwari was of the opinion that credible evidence was available to show that the aim of sanctioning

50 Source: www.ipripak.org

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billions of rupees for FATA was not so much the development of these areas as it was to keep the supposedly formidable and wily tribesmen in check on the porous western border. "An inquiry in such affairs is neither appreciated nor allowed under any set of circumstances. It is here that the elements of gagging the press through the infamous FCR come into play," he stated. It was a disgustingly shameful fact, he added, that apart from one or two none of the hundred or so newspapers paid their stringers any stipend or salary at all in the tribal agencies. "Even more shameful is the fact that a majority of the newspapers would see to it that a go-getter type reporter could be found who should instead feed the newspaper," he claimed. Mr. Shinwari stated amidst all this suffocation there were journalists who remained undaunted and steadfast. No amount of pecuniary considerations or coercion could force these journalists to yield on their principles. He added that the relatives and friends of such journalists had been picked up, persecuted and thrashed and their properties confiscated and demolished under the collective responsibility clause of the FCR. "Wana is the wages of the great cover-up in the shape of suppression of journalists and concealment of facts that preceded the latest operation. Lessons have still not been learnt. Journalists are still being denied access to truth," he said. The tribal areas, he maintained, should be opened up by doing away with the draconian laws and by introduction of basic laws that apply to human beings everywhere else in the world. 51

Success prospects of Agency Councils

A former bureaucrat and ex-chief secretary of Northern Areas, Mr. Sang-e- Marjan Khan, who belongs to the troubled South Waziristan Agency, elaborated various aspects of the Agency Council plan in the FATA. He said that for achieving the objective of good governance and sustainable development in FATA institutionalized and effective participation of the community in the decision-making process was a must. He added that the necessity of establishing local self-government institutions duly tailored to the ground realities and sensitivities of the area could not be ignored. He pointed out that the devolution plan enshrined in the FATA Local Government Regulation 2002 in its present form, prepared by various intellectuals, was not in accordance with the ground realities and it would not be digested by the concerned community with the result that it might not be sustainable and viable in the true sense. Mr. Sang-e-Marjan Khan suggested that the appropriate forum for scrutinizing and revamping the devolution plan could be a committee of elected representatives of FATA and till then as an interim arrangement the proposal of establishing Agency Councils would be a step in the right direction. "Though selection of councilors through the tribal Loya Jirga may not be a substitute for proper election on adult franchise basis, yet it is far better than a council totally nominated by the bureaucracy," he added.Explaining the salient features of the blueprint of the interim arrangement, Mr. Khan stated that depending on the population of the Agency/Frontier Region the membership of the agency council should not be less than

51 Ismail Khan, Dawn, March 30, 2008.

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20 and not more than 40 and that of FR not less than 10 and not more than 20. He added that there were two options for selecting the councillors for these councils: nomination by the government and selection by the Loya Jirga of the tribes concerned. He proposed that the government might nominate 20 to 25 percent of the members, while the rest of the councillors should be selected by the Jirga.About the powers and functions of a council, Mr. Khan stated that it should approve laws and rules of business for streamlining the functioning of the Agency/FR council and its various committees. He added that the council should approve taxes of local nature, user charges and services charges, etc; approve long- term and short- term development plans; approve annual budget of the agency; and review the monitoring committees' quarterly reports on the performance of the government departments. He suggested: "The Political Agent should preside over its meetings as convener. However, the council should elect a panel of three or more presiding officers in order of precedence who shall in the absence of the Political Agent preside over the meetings." 52 Referring to the suggestion of giving representation to the tribesmen in the NWFP Assembly, Mr. Khan stated that it would convert FATA into PATA and the tribal response to such a proposition would be a big ‘no’ as they had been guarding the existing special federal status of their area. "Underthe present circumstances it will be in the fitness of things if provision for a separate FATA Council is made. The NWFP Governor should be its chairman and it should consist of all the MNAs, Senators from and two elected members from each agency preferably Nazim and Naib Nazim of the Agency/FR Council," he proposed. The council, he stated, should be invested with powers to make laws, rules, and regulation for the good governance of FATA. FCR and economy of FATA Mr. Jamal Khan, an economist, in a seminar of HRCP, explained the link between FCR and the economy in FATA. Since the Khyber Agency is one of the major agencies in FATA, he focused his presentation on the economy in that agency . He was of the opinion that over the decades the FCR had helped in the expansion of undocumented economy in FATA. He stated that FATA was known for smuggling and drug trafficking. He added that the economies of different agencies were very much similar to each other. About 70 percent of the total trade between Pakistan and Afghanistan passed along the Peshawar-Torkham-Jalalabad Road, and this gave the Khyber Agency eminence in the economy of FATA, he added.

Mr. Khan said that in the past the Khyber Agency was a poor agency. He added that from 1952 till 1972 Daud Khan served as Prime Minister of Afghanistan and the Pakhtunistan issue surfaced during that time. The Pakistan establishment, he said, paid attention to the issue and in this period the first Bara Market was established in the agency. In late 1950s and early 60s, he claimed, shops were allotted

52 Ahmad Hassan Dani, Alberuni’s Indica (Islamabad: University of Islamabad), 1973, p.24.

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to pro-Pakistani tribesmen. Smuggling of electronic goods, printing of fake currency and other illegal businesses flourished in the market as the government normally tolerated these crimes. In the 1970s, this market was gutted in a big and mysterious fire and a much bigger market replaced it. In that market also, shops were given to pro-Pakistani as well as Pan -Islamic tribesmen. When leftists came to power in Afghanistan in 1978, new markets were built in Peshawar and in these markets even pro-Pakistani Afghan traders were allotted shops. Mr. Khan said that the FCR shaped the economy in FATA as under different clauses the business concerns and markets could be seized under the collective and territorial responsibility clauses. He said that there was no transparency in the financial affairs of FATA as no audits were conducted. The Political Agents of respective tribal agencies, he pointed out, had the powers to levy different taxes on items coming into an agency or passing through it. "It is not clear whether these taxes are collected by the Government of Pakistan or the Political Agents as these are not properly documented," he maintained. Khan stated that there was no growth of industrialization in FATA. The land was owned collectively as no land settlements had ever taken place. The magnitude of illegal financial activities, he claimed not only affected Pakistan but also the entire world. The opium trade in FATA, he added, helped in attracting foreign currency that was much easier for the terrorists to use for their activities. He added that a significant portion of the foreign currency was undocumented in FATA. The infrastructure in FATA, Mr. Khan stated, was in a terrible state as for the last 50 years no specific programmes to improve the infrastructure had been launched.-Eventually, he suggested, it was necessary to integrate FATA into the NWFP. For that purpose gradual taxation should be introduced. Initially, he added, they could collect taxes and specifically use the funds on the development of FATA. He also proposed establishment of a chamber of commerce and industries in FATA. He said that a proper budget should be presented for FATA on annual basis. 53

FCR and Violation of Human Rights

At the time of independence, Pakistan instead of reviewing the FCR and trying to integrate the tribes into NWFP decided in favour of retaining the system applied by the colonial masters. The political agents were provided suppressive executive powers that they would use in coordination with about over thirty thousand maliks to run the affairs of about six million tribes in the most arbitrary manner reminiscent of the colonial era. Like the colonial rulers it is the privilege of the political agent to confer the title of malik to an individual tribesman, thus the maliks report to the political agents and the ordinary tribal souls rests at the mercy of the maliks. The system has been vulnerable to all kinds of corruption, the bureaucrats sitting in the FATA secretariat at Peshawar are not in a position to oversee the state




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of affairs between political agents and maliks. Government contracts, services and other facilities are openly used as bargaining chips to win loyalties or reward favourites. Smuggling and trade of illegal items including drugs and guns remain rampant. Tribal areas were the spring board for military action during the Afghan war, billions of dollars and equipment were pumped in, and a large number of jihadis from all parts of the world was brought into the areas, the consequence of which the poor tribesmen are still struggling with. On the heals of this cataclysmic onslaught came the Taliban who swept across the areas of Afghanistan but were soon to be pushed back and are now stuck between the tribal hospitality and hostilities of the coalition forces next door in Afghanistan. FATA remains the DARK, DARK region where there is no rule of law. It is not only because Taliban inspired armed groups seek to impose medieval practices but effectively Pakistan too practices the similar medieval legal practices under the Frontier Crime Regulation (FCR) of 1901. The entire region has been deprived of any semblance of legal reforms that took place elsewhere in Pakistan. 54

Some of the drawbacks of the FCR SYSTEM are:

• People of FATA live at the mercy of the President of Pakistan. Under Article 247(3), no act of the Parliament shall apply to FATA or any part thereof unless the President so directs. As the FCR, which is antithetical to due process of law, governs the administration of justice and Pakistan kept the region in legal darkness.

• First, the FCR provides for collective punishment to the family members or blood relatives instead of punishing only the guilty.55

• Second, under Section 21 of the FCR, the political authorities like the Political Agents and Assistant Political Agents of the government enjoy unbridled powers56 including the powers of a) seizure, wherever they may be found, of all or any of the members of such tribe and of all or any property belonging to them or any of them; b) detention in safe custody of any person or property so seized; c) confiscation of any such property and, with like sanction, by public proclamation; d) debarring all or any member of the tribe from all access into the (country); and e) prohibiting all or any person within the limits of British India from all interaction or communication of any kind whatsoever, or of any specified kind or kinds, with such tribe or any section or members thereof.57

• Third, FCR does not provide any fair trial. People suspected of having committed a criminal offence are tried by the tribal jirga or council which submits its recommendations regarding conviction or acquittal to the Political

54 http://www.pakistanlink.com/Letters/2004/July04/16/06.html 55 UN help sought to save IDPs from starvation: Balochistan instability displaces 84,000, The Dawn, 22 December 2006

56 http://www.pakistanlink.com/Letters/2004/July04/16/06.html 57 http://www.pakistanlink.com/Letters/2004/July04/16/06.html

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Agent who makes a decision regarding conviction or acquittal but is not bound by the jirga's recommendations.58 Moreover, the suspects are tried without legal representation.59 There is no provision of appeal against conviction or punishment order by the Political Agents as the jurisdiction of Pakistan's higher judiciary is barred under Article 247(7) of the constitution from exercising its jurisdiction in the FATA.60

• Tribal prisoners in FATA regions reportedly served two or more sentences for the same crime. While hearing a jail writ petition of Rahimullah, a division bench of Peshawar High Court consisting of Chief Justice Tariq Pervaz Khan and Justice Qaim Jan Khan directed the Federally Administered Tribal Areas (FATA) security secretary to check the “unbridled” powers of political authorities and the human rights violations carried out by them. The Assistant Political Agent (APA) of Bara had sentenced Rahimullah under section 40 of the FCR on 15 December 2003 but before the completion of Rahimullah's first jail term, the APA passed another order on 14 January 2005 against him in the same crime. As if that was not enough, before the completion of Rahimullah's second illegal jail term, the APA passed a third conviction order on 25 May 2006, for another three years for the same crime.61

• In the war against Taleban and Al-Queda, the tribals of FATA have become victims of indiscriminate attacks by the Pakistani military. On 30 October 2006, 82 people including at least 12 children were reportedly killed in an air strike at a madrassa (Islamic religious school) in Damadola in Bajaur agency (bordering Afghanistan) in FATA.62 The locals claimed that all those killed were Islamic teachers and students.

FCR and Amnesty International Amnesty International considers the law governing the FATA, the Frontier Crimes Regulation, 1901 (FCR), to be deeply flawed as it does not ensure the human rights protection afforded by the Constitution of Pakistan, or Pakistan’s international obligations as a state party to the UN Convention on the Rights of the Child and the UN Convention on the Elimination of All Forms of Discrimination against Women. For example, under the FCR, people suspected of having committed a criminal offence are heard, without legal representation, by a formally constituted tribal jirga or council which submits its recommendations regarding conviction or acquittal to the Political Agent. The Political Agent makes a decision regarding conviction or acquittal but is not bound by the jirga’s

58 http://web.amnesty.org/library/index/engasa330132006

59 http://web.amnesty.org/library/index/engasa330132006

60 See Article 247

61 PHC asks FATA security secy to check admin's powers, The Daily Times, 13 April 2007 62 82 die as missiles rain on Bajaur: Pakistan owns up to strike; locals blame US drones, The Dawn, 31 October 2006

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recommendations. Punishments which the Political Agent can impose include fines, house destruction and imprisonment but not the death penalty. There is no possibility of appealing against conviction or punishment under the FCR as the jurisdiction of Pakistan’s higher judiciary, which has appellate powers in Pakistan, does not extend to the FATA. Amnesty International has appealed to the Government of Pakistan to amend or repeal the FCR as it violates rights guaranteed in the Constitution of Pakistan and international human rights law, including the right to equal protection of the law, the right to fair trial which includes the right to legal counsel and to appeal, and the right to be prosecuted only for offences of which one is suspected, not for offences allegedly committed by a relative. Hayatullah Gul was not afforded even the flawed protection offered by the FCR. He was not brought before a duly constituted jirga, his case was not decided by the Political Agent for South Waziristan and,if the FCR had been applied, the death penalty could not have been imposed him. Amnesty International has been informed of other instances in which even the aminimal protection afforded by the FCR has been ignored and tribal councils have arrogated criminal justice functions to themselves, “trying”, “convicting” and ordering the punishment of alleged offenders. These includeOn 14 March 2004, eight men were publicly executed in Orakzai Agency. Five of the men had allegedly been involved in kidnapping and looting in Mamoonzai area; three had been caught a few days earlier for alleged robbery. The eight men were “tried” together by an informal council of elders and executed immediately after the“verdict”. In mid-June 2005, two men were shot dead by firing squad on the orders of an informal tribal council of elders in Orakzai Agency. They had allegedly killed a taxi driver a few weeks earlier, the victim’s family petitioned the tribal elders and named the alleged culprits. The “verdict” was immediately carried out without referral to the Political Agent. Amnesty International is concerned that the Government of Pakistan, under whose federal responsibility the FATA fall, has failed to curb informal bodies unlawfully assuming criminal justice functions in the tribal areas and meting out punishments which amount to torture or are cruel, inhuman or degrading. Amnesty International urges the Government of Pakistan to now take decisive steps to publicly condemn unlawful trials by jirga in the FATA that lead to unlawful killings and other punishments that amount to torture or cruel, inhuman or degrading treatment, and to bring to justice perpetrators of such acts. Amnesty International also reiterates its earlier calls to the government to repeal the FCR and place the tribal areas under the jurisdiction of the regular laws and courts of Pakistan.63

SECRET DETENTION IS BANNED UNDER INTERNATIONAL LAW

Secret detention is prohibited under international human rights law. The UN Human Rights Committee, responsible for monitoring the implementation of the International Covenant on Civil and Political Rights to which the US is a state party, has stated that "provisions should be made for detainees to be held in places officially recognized as places of detention and for their names and places of detention… to be




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kept in registers readily available and accessible to those concerned". In July 2006, the Human Rights Committee called on the USA to "immediately abolish all secret detention and secret detention facilities".

The UN Special Rapporteur on torture has also said that "the maintenance of secret places of detention should be abolished under law. It should be a punishable offence for any official to hold a person in a secret and/or unofficial place of detention."64 International human rights bodies have held that secret detention and enforced disappearances themselves constitute ill-treatment or torture, in view of the considerable suffering of people detained without contact with their families or anyone else from the outside world, and without knowing when or even if they will ever be freed. If the USA has established secret detention facilities within Pakistan, the Pakistani authorities may have been complicit in human rights violations. In accordance with international law, a state which aids or assists another state in the commission of a violation of international law is internationally responsible if it does so with knowledge of the circumstances of the violation. In other words, if the Pakistani authorities have facilitated abduction of persons knowingly provided an essential facility or placed its own territory at the disposal of the US or another state then this may constitute complicity65. (128)

Torture and other ill-treatment

The power of political agents has been almost entirely assumed by military commanders since 2004. The FCR operates on the principle of collective responsibility and collective punishment. Under the FCR, authorities are empowered to detain members of fugitives’ tribes, demolish their homes, confiscate or destroy their property, or siege a fugitive’s village pending his surrender or punishment by his own tribe in accordance with local tradition.66 Pakistani military has made frequent use of the provisions of the FCR. In January 2004, a tribal militia in South Waziristan used military bulldozers to destroy the homes of seven fugitive tribesmen. At the time, government officials, including the military spokesperson, went on record threatening mass arrests and further collective punishment if those wanted by the military were not handed over. Similarly, the FCR was put to devastating use in the village of Kalusha in South Waziristan. On March 16, 2004, army and paramilitary troops reportedly evicted between 25,000 and 35,000 civilians from the area in and around the village of Kalusha in just a few hours. They remained without shelter for the two week long operation and returned to find that the army had destroyed scores of homes, cattle, and crops…”

64 UN Doc. E/CN.4/2002/76, 27 December 2001, Annex 1.

65 International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, Article

16 (Aid or assistance in the commission of an internationally wrongful act), UN General Assembly Resolution 56/83, UN Doc. A/RES/56/83, 12 December 2001. 66 http://hrw.org/english/docs/2006/03/08/pakist12774.htm

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Torture and other ill-treatment in the custody of law enforcement, security and prison personnel are endemic in FATA jails.(155) Lacking training and forensic and other facilities, law enforcement and security services rely almost exclusively on confessions. Torture, including rape, is habitually used to extract confessions. As documented by the HRCP, torture is also used to intimidate, humiliate, frighten and punish prisoners.(156)

The Constitution of Pakistan prohibits torture in a limited way: Article 14(2) provides, "No person shall be subjected to torture for the purpose of extracting evidence". International law prohibits torture absolutely at all times and in all circumstances.

The right to habeas corpus undermined

The right to be brought before a court and be able to challenge the legality of one’s detention (habeas corpus) is crucial to the very concept of the rule of law and the prohibition of arbitrary detention. It is a peremptory rule of customary international law, namely binding on all nations and even in times of national emergency persons deprived of their liberty must be able to challenge the lawfulness of their detention. The Constitution of Pakistan provides that the higher judiciary is responsible for the protection of human rights. It gives the Supreme Court the power to take up any matter it considers of public importance with regard to the enforcement of human rights.(327) The provincial high courts have the power to issue orders to provincial authorities with regard to the enforcement of fundamental rights upon receipt of a complaint from any person.(328) The right to seek the enforcement of fundamental rights by the high court may not be curbed.(329)

The Constitution of Pakistan provides the right to habeas corpus in Pakistan in Article 199 which says: "(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,- (b) On the application of any person, make an order – (i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manne."

While the Constitution of Pakistan provides that "to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being in Pakistan67"(330) and that "[a]ll citizens are equal before law and are entitled to equal protection of law",(331) the right of habeas corpus is not available to all people in Pakistan. It is restricted to those living within the jurisdiction of the country’s high courts and does

67 Article 4(1) of the Constitution of Pakistan.

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not apply to people in the designated tribal areas of Pakistan. The Federally Administered Tribal Areas of Pakistan (FATA) are recognized in Article 1 of the Constitution to be part of Pakistan, but the Constitution also lays down a rigorous separation in terms of law, institutions and human rights protection between the FATA and the rest of the country. The criminal code of Pakistan does not apply to the FATA and Article 247(7) of the Constitution excludes the FATA from the jurisdiction of the country’s high courts and the Supreme Court. In practice this means that no resident of the FATA can exercise the right of habeas corpus. When Hayatullah Khan was abducted in December 2005 near Mirali in North Waziristan, his family could not ascertain his whereabouts by approaching a high court but had to resort to informal contacts. In some cases, detaining authorities also appear to have deliberately moved detainees into the tribal areas to place them outside the jurisdiction of high courts.

In practice the right to habeas corpus has been gravely undermined both by state agencies and by the unwillingness of high courts to insist on the realization of that right. Many relatives of people who have been subjected to enforced disappearance in the "war on terror" have filed habeas corpus petitions in the provincial high courts. Amnesty International is not aware of a single case in which this process has led to the recovery of person subjected to enforced disappearance. Many people do not attempt to obtain relief from the judiciary for fear that the person detained will suffer reprisals as a result. Some relatives have expressed to Amnesty International their sense of helplessness and disappointment with the higher judiciary. The HRCP stated in its annual report for 2004, "these cases of disappearance [observed in 2004] brought to light the inadequacies of the habeas corpus process because the superior courts could offer no relief if the agency/force/department named as respondents denied the arrest or detention of the missing persons68". Similarly the Herald concluded its survey of such cases by saying, "The judiciary appears to have lost the will to defend unarmed people against their own secret agents". Statistics appear to bear this out. A report in October 2005 indicated that in the Peshawar High Court alone, 17 habeas corpus petitions relating to 27 men and three women had been filed over the previous two years, all of which were unsuccessful, after the respondents, including the Ministries of the Interior and Defense, denied any knowledge relating to these individuals. An unknown number of similar petitions filed in district and sessions courts under section 491 of the Code of Criminal Procedure had been similarly dismissed. (334)

“FATA” AND ITS LEGEL ADMINISTRATIVE SYSTEM

ADMINISTRATIVE SYSTEM

68 HRCP, The state of human rights in 2004, 2005.

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Under the Constitution, FATA is included among the “territories” of Pakistan (Article 1). It is represented in the National Assembly and the Senate but remains under the direct executive authority of the President (Articles 51, 59 and 247). Laws framed by the National Assembly do not apply here unless so ordered by the President, who is also empowered to issue regulations for the “peace and good government” of the tribal areas. Today, FATA continues to be governed primarily through the Frontier Crimes Regulation 1901. It is administered by Governor of the NWFP in his capacity as an agent to the President of Pakistan, under the overall supervision of the Ministry of States and Frontier Regions in Islamabad (Khan, 2005).

Until 2002, decisions related to development planning in the tribal areas were taken by the FATA section of the NWFP planning and development department, and implemented by government line departments. In that year, a FATA Secretariat was set up, headed by the Secretary FATA. Four years later, in 2006, the Civil Secretariat FATA was established to take over decision-making functions, with an Additional Chief Secretary, four secretaries and a number of directors. Project implementation is now carried out by line departments of the Civil Secretariat FATA. The NWFP Governor’s Secretariat plays a coordinating role for interaction between the federal and provincial governments and the Civil Secretariat FATA. Each tribal agency is administered by a political agent, assisted by a number of assistant political agents, tehsildars (administrative head of a tehsil) and naib tehsildars (deputy tehsildar), as well as members from various local police (khassadars) and security forces (levies, scouts). As part of his administrative functions, the political agent oversees the working of line departments and service providers. He is responsible for handling inter-tribal disputes over boundaries or the use of natural resources, and for regulating the trade in natural resources with other agencies or the settled areas. 69

The political agent plays a supervisory role for development projects and chairs an agency development sub-committee, comprising various government officials, to recommend proposals and approve development projects. He also serves as project coordinator for rural development schemes.

An FR is administered by the district coordination officer of the respective settled district, who exercises the same powers in an FR as the political agent does in a tribal agency. Interference in local matters is kept to a minimum. The tribes regulate their own affairs in accordance with customary rules and unwritten codes, characterised by collective responsibility for the actions of individual tribe members and territorial responsibility for the area under their control. The government functions through local-level tribal intermediaries, the maliks (representatives of the tribes) and lungi holders (representatives of sub-tribes or clans), who are influential members of their respective clan or tribe (Shinwari, undated). All civil and criminal




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cases in FATA are decided under the Frontier Crimes Regulation 1901 by a jirga (council of elders). Residents of the tribal areas may, however, approach the apex courts (Supreme Court of Pakistan and Peshawar High Court) with a constitutional writ challenging a decision issued under the 1901 Regulation. FATA elects members to the federal legislature through adult franchise. The system of devolution introduced elsewhere in the country in 2001 by means of provincial Local Government Ordinances (LGOs) has not been extended to the tribal areas. A separate LGO for FATA has been drafted and is awaiting promulgation. A system of partial local-level governance does, however, operate through councils in the tribal agencies and FRs. Elected councillors are involved in various aspects of development planning and decision making. 70

FATA is divided into two administrative categories: ‘protected’ areas are

regions under the direct control of the government, while ‘non-protected’ areas are administered indirectly through local tribes. In protected areas, criminal and civil cases are decided by political officers vested with judicial powers. After completing the necessary inquiries and investigations, cognizance of the case is taken and a jirga is constituted with the consent of the disputing parties. The case is then referred to the jirga, accompanied by terms of reference. The jirga hears the parties, examines evidence, conducts further inquiries where needed, and issues a verdict which may be split or unanimous. The political agent, or an official appointed by the political agent for this purpose, examines the verdict in the presence of parties to the case and members of the jirga. If the verdict is found to be contrary to customary law or tainted with any irregularity, the case may be remanded to the same jirga for re-examination or the verdict may be rejected and a fresh jirga constituted. Where the verdict is held to be in accordance with customary law and free of irregularities, it is accepted and a decree is issued accordingly. An aggrieved party may challenge the decree before an appellate court, and a further appeal may be lodged with a tribunal consisting of the home secretary and law secretary of the federal or provincial government. Once appeals are exhausted, execution of the verdict is the responsibility of the political administration. In non-protected areas, cases are resolved through a local jirga at the agency level. Local mediators first intervene to achieve a truce (tiga) between parties in a criminal case, or to obtain security (muchalga) in cash or kind for civil disputes. Thereafter, parties must arrive at a consensus concerning the mode of settlement—arbitration, riwaj (customary law) or Shariah (Islamic law). Once the mode of settlement is agreed upon, mediators arrange for the selection of a jirga with the consent of the parties to the case.

Where arbitration is selected, a jirga is nominated by consensus and given an open mandate (waak), with the understanding that its decision will be accepted by all parties. Here, the decision of the jirga cannot be challenged. In cases decided according to customary law or the Shariah, however, an aggrieved party may challenge the jirga’s decision before another jirga of their own choice. The new jirga

70 IPRI Database www.ipripak.org

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does not hear the case afresh but only examines the original decision to see whether it deviates from customary law or the Shariah. Further appeal may be referred to a third jirga and its decision is final. Implementation of jirga decisions in non-protected areas is the responsibility of the tribe. The jirga may mete out punishment to an offender, imposing a heavy fine. Occasionally, more serious measures may be taken such as expelling an individual or a family from the area, and confiscating, destroying or setting fire to homes and property. In such cases, the entire tribe bands together as a lashkar (army) to enforce the decision.While most disputes are settled internally, more serious matters may require the calling of a larger jirga made up of maliks, elders, the political agent, members of the National Assembly and Senate, and occasionally even representatives from neighbouring agencies or FRs. Although the jirga mechanism enjoys widespread favour, corruption has begun to enter the system. It is reported that the poor and more vulnerable segments of society cannot afford to convene a jirga. There are a number of requirements for a jirga to be held, including hospitality, which are increasingly beyond the reach of most ordinary people. There is also the grievance, now voiced more frequently, that in most cases jirga decisions favour the richer or more influential party.71

Law and Order Department72

Introduction

Law and Order Department was created in the existing premises of former Governor’s Secretariat FATA after its restructuring in 2006. It is headed by a Secretary who looks after the affairs of law and order in FATA in order to ensure peace. The functions of the department are to establish writ of the government, ensure security and protection of tribesmen, readdress grievances of the people, framing rules for Khassadars/Levies, ensuring a poppy free FATA, administrating justice through courts, ensuring availability and control of essential commodities livestock etc to the tribesmen, dealing with emergencies/natural calamities, provision of infrastructures to LEAs and ensuring their training. The department undertakes these measures in coordination with Political Agents/DCOs, intelligence agencies, army, paramilitary forces, Jirga and local consultation.

Business of the Department

• Intelligence reports.

• Liaison between the armed forces/law enforcement agencies and Civil Secretariat (FATA).

• Communications security.




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• Treaties and agreements with tribes in FATA.

• Issuance of NOC for foreigners to visit FATA.

• FCR.

• Matters relating to the internal security of FATA.

• Policy regarding arms, firearms, ammunition and explosives in FATA.

• Territorial jurisdiction of FATA and changes in the boundaries of its administrative units – Agencies/FRs.

• Political disputes in FATA.

• Security and operation of cipher communications.

• Coordination amongst political administration in FATA.

• Matters relating to the Durand line.

• Application of laws in FATA.

• Matters relating to Mawajib, Maliki and Lungi allowances.

• Matters relating to FC, Khassadars and Levies.

• All matters relating to Narcotics control in FATA.

• Matters relating to the Agency/FR Councils.

DEPARTMENT OF LOCAL GOVERNMENT AND RURAL 73

Introduction

The directorate of Local Government and Rural Development (LG & RD) was established in 1973 and shifted to the Governors Secretariat (FATA) in 2000. It is headed by a director with his representatives, Assistant Directors, in each agency. The directorate has access to communities at the grassroots level and works closely with the elders, maliks, counsellors and PA of the respective agencies. It is the only department which is attached with the office of the Political Agents in the respective agencies, therefore all projects are undertaken through the Political Administration (the PA also acts as the project director of the local government schemes). The LG & RD handles mostly small scale projects at the ground level such as hand pumps, dug wells, sanitation, small roads and irrigation schemes such as bore holes and open wells etc. The current practice of identification of schemes and projects is done through a combination of needs based demand of the community and consultations with the relevant authority.

Strengths and Opportunities in the Sector

The strength of the sector lies in the fact that it works closely with the communities and is therefore involved with the uplift of the very poor section of the tribal society. Any improvement through this sector will directly benefit the local level tribal people. Since this sector is working at the grass roots level the development done through this sector can bring a change in the normal routine

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development approach by evolving it to a community based development approach. As the directorate works with the local people they can organize them in different community groups to share the responsibility of development with the public sector. The capacity building of department would meet the growing demands and challenges of the developmental works at the grassroots level.

Development Strategy

• Provision of clean drinking water and sanitation facilities at household and community level.

• Provision of access to market from rural agriculture productive areas.

• Provision of social welfare services to the female population of FATA.

• Provision of recreational facilities in FATA

JIRGA 74

The Jirga is one informal institution that has very formal effects on the Pakhtoon society in general and the tribal Pakhtoons in particular. It is dubbed the bulwark of liberty and independence in the Pashto-speaking world. "The Jirga, by which most community business, both public and private, is settled in the North West Frontier Province (and also Balochistan), is probably the closest approach to Athenian democracy that has existed since times immemorial. The Jirga represents the essence of democracy in operation under which every individual has a direct say in shaping the course of things around him. Practiced this way, democracy operates as a spiritual and moral force instead of becoming an automation of votes," writes Syed Abdul Qudus in his book, The Pathans. The Jirga is a customary judicial institution in which cases are tried and rewards and punishments are inflicted. From the outset, the use of the Jirga is limited not only to trials of major or minor crimes and civil disputes but it also assists in resolving conflicts and disputes between individuals, groups and tribes. It is the only vehicle by which the political administration in the tribal areas dispenses justice.

Because the political administration lacks the authority to enforce peace, a Jirga is constituted to make a truce and place a ‘Tiga’, literally a stone, between the warring parties. The origins of the Jirga are lost in the midst of history. It may have been indigenous to the Pakhtoon society or may have been brought over by the Central Asian invaders. The Jirga has, however, helped to enrich the Pakhtoon culture and values. The discourse among the people in the Jirga is an effective way to teach the young ones the real meaning of Pashtoonwali, the all-encompassing code of conduct, including Nang and Siali, the codes of honor and social equality.

Sitting in a circle, the Jirga has no speaker, no president, no secretary or convener. There are no hierarchical positions and required status of the participants. All are equal and everyone has the right to speak and argue, although, regard for the elders

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is always there without any authoritarianism or privileged rights attached to it. The Jirga system ensures maximum participation of the people in administering justice and makes sure that justice is manifestly done. It also provides the umbrella of safety and security to the weaker sections of the tribal people from the mighty ones. Besides settling inter-tribal disputes, the Jirga is also used to conduct the tribes' relations with the outside world. The British maintained their relations with the tribes through the Jirgas, both in the NWFP, Balochistan and across the border in Afghanistan. They offered written treaties guaranteeing non-interference in the tribal affairs, so long as the Jirgas recognized the suzerainty of the Raj. The Government of Pakistan honors these treaties and has made similar ones of its own. Thus the Jirga is a formally recognized institution in the tribally administered areas of Pakistan.75

There is also the more common and informal Jirga that operates in the tribal areas, which does not have any legal administrative authority. This is known as the ‘Maraka’. Literally, Maraka stands for Opinion. It is a general assembly of people in which important collective issues are discussed, opinions sought, and decisions taken. Thus a Maraka may represent a whole tribe, a clan, a sub-clan, a section, or even a single family, depending on the nature of the issues for which it is convened. Unlike the Jirga, it does not carry a government sanction but represents the collective will of people, all the same. There are various types of Jirgas that exist in the contemporary tribes. Most notable among these are:

Sarkari Jirga

Established under the Frontier Crimes Regulation (FCR) 1901, the magistrate, the political agent or his assistant can designate a group of elders to try a criminal or a civil case. The FCR authorizes settlement of quarrels by this Jirga that arise out of blood-feuds, relating to zan, zar, zamin (women, wealth and land) and all other questions affecting the Pakhtoon honor and way of life. This Jirga can inflict a maximum penalty of up to fourteen-year imprisonment.

Qaumi or Ulasi Jirga

The Ulasi Jirga is an assembly of the elders comprising each household of a certain village or community. It is convened to discuss matters such as collective property, rights and distribution of irrigation water, or common concerns, like selection of a site for a school, etc.

Shakhsi Jirga




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This Jirga is formulated in case a dispute arises between two individuals or families. The Jirga members are chosen from both the parties to arrive at a just settlement acceptable to both sides.

Selection of the Jirga:

The selection of the Jirga members varies according to the type of Jirga. For Sarkari Jirgas, usually the members are selected from the notable elders or the Maliks of the area. In a Shakhsi Jirga the government selects and appoints two members from each side, whereas one member each is selected by the consent of the parties in the dispute. In case of the Ulusi Jirga, the members are usually comprised of elders of the notable families whose social standing and experience with the Pashtoonwali entitles them to a place on the council. The size of a Jirga varies from one situation to another, based on the nature, significance and sensitivity of the dispute. It might consist of one member, although two members are more usual and often there are four or six experienced members, fully conversant with the laws of the Pashtoonwali.

How the Jirga works 76

The Jirga or a Maraka comprises the ‘Spin Giris’, white bearded elder men, and other members. The ‘spin giris’ act as judges and those participating as jurists. The Maraka passes a judgment after necessary investigation into the dispute. No effort is spared to reconcile the disputing parties. The decisions are of two types, one is based on the concept of Haq; the right, and the other on Waak; authority. Both sides are allowed to present their arguments before a decision is given. In case of Haq, each party has the right to challenge the decision of the Jirga on its merit. If one of the parties is not satisfied with the verdict and feels that the Jirga has not done justice, they can quote precedents and rules (Narkh) to plead their point and reject the decision. It is interesting that different tribes may have different Narkh in similar cases. In that case, the aggrieved party has the right to bring another Maraka to re-examine the issue. In doing so, usually the decision given on the third occasion is considered to be final.

In the case of Waak, the two parties repose their full confidence in the Jirga and authorize it to decide the case according to its best judgment. The parties have to abide by the decision and cannot challenge it. However, the decision has to be unanimous. The Jirga determines the punishment to be inflicted on the basis of Narkh (tribal rule, or precedent). Anyone who then does not abide by the decision of the Jirga is subjected to punitive measures. This practice varies from one part of the tribal areas to another. Usually, anyone who rejects collective wisdom takes a grave risk; for a Jirga can impose powerful sanctions to enforce its judgment. The sanctions can include ex-communication of the non-complying person or a group. The Jirga can confiscate rifles


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belonging to the non-compliant party and place them with the Jirga as ‘Gravey’ (mortgage), or impose heavy fines to be paid to the complying party in the dispute. If non-compliance persists, the Jirga can use force by sending men to burn down the party's house(s). If someone still remains defiant and does not comply with the Jirgas orders, he is considered to be ‘Kabarjan’, the arrogant one. By doing so, he loses the security promised by the Jirga, and thus may be killed without any consequence by his opponents. The collective decisions of Qaumi or Ulusi Jirgas are carried out by a council of the tribesmen under different names: these are the Salwaikhtee (40’s) in Waziristan, the Lashkar in Afridwala and the Rapakian in Kurram. Typically, the council comprises about forty members and its effectiveness is determined by the strength and sanctions they derive from the tribal people, whom they represent. And so, the Jirga continues to be the sole judicious mechanism used to administer justice in the tribal areas of Pakistan.77

A critical review of FCR

The Frontier Crimes Regulation comprises a set of laws enforced by British colonialists in the Pakhtoon-inhabited areas. They were specially devised to counter the fierce opposition of the Pakhtoons to British rule, and their main objective was to protect the interests of the British. The FCR dates back to the occupation of the six Pakhtoon-inhabited Frontier districts by the British in 1848. The regulation was re-enacted in 1873 and again in 1876, with minor modifications.

With the passage of time, the regulation was found to be inadequate and new acts and offences were added to it to extend its scope. This was done through promulgation of the Frontier Crimes Regulation 1901. The British devised the FCR as an instrument of subjugation. It was meant to discipline the Pakhtoon population and to establish the writ of the colonial authority. In drafting the regulation, the British relied upon some customs and traditions prevailing in the tribal belt, but these traditions were distorted to suit the government's plan of securing convictions at will. Consequently, the law contains no concept of an independent, impartial judicial authority or a court of law to dispense free and fair justice. This is contrary to the mandate of the Constitution, and a vital safeguard is consequently altogether missing from the FCR. Thus, while the law incorporates the custom of trial by a jirga, the selection of jirga members is left to the executive authority, and the findings of the jirga are not binding. This way the executive was made the ultimate authority and final arbiter to initiate trial prosecute offenders and award punishments. Surviving the exit of the British and the independence of the country, the FCR negates constitutional provisions and international human rights practices in many respects. The very preamble as well as Article 2-A and 175 of the constitution provide for an independent judiciary in the tribal area, but judicial authority has been vested in the executive alone. The constitution protects the fundamental rights of citizens by 77 Federally Administered Tribal Areas of Pakistan By Noor ul Haq, Rashid Ahmad Khan, Maqsudul



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giving them the right to approach the high courts and the Supreme Court. The tribesmen convicted under the FCR, however, cannot file an appeal against the political agent's judgment in the superior courts. This is due to Article 247 (7) of the constitution, which bars the exercise of jurisdiction of the courts in the Federally Administered Tribal Area (FATA). Thus, while fundamental rights remain theoretically available to FATA residents, Article 247 (7) places a bar on the jurisdiction of the courts that precludes the enforcement of fundamental rights.

There are numerous provisions in the FCR which makes it a brutal law. The seizure and confiscation of property and arrest or detention of an individual without due process and debarring a person in the tribal area from entering the settled district under Section 21, removal of a person from his residence or locality under Section 36, imposition of fines on the entire community for crimes committed by individuals under sections 22 and 23 are some of the provisions that make the FCR a draconian law.

According to Dr Faqir Hussain, secretary Law and Justice Commission of Pakistan, all the FCR provisions - substantive as well as procedural - e.g. selection of jirga members (section 2), trial procedure in civil/criminal matters (sections 8 & 11), demolition of and restriction of construction of hamlet, village or tower in the Frontier (section 31), method of arrest/ detention (section 38 & 39) security for good behaviour (sections 40, 42), imposition/collection of fine (sections 22-27), etc are in violation of the Constitution. He says the FCR is contrary to Article 8 of the constitution, which provides that any law or custom or usage having the force of law, in so far as it is inconsistent with fundamental rights shall be void. He says the provisions of the FCR are violative of several articles of the constitution, such as Article 4 (the right of an individual to be dealt with in accordance with the law), Article 9 (security of person), Article 10 (safeguards as to arrest and detention), Article 13 (protection against double jeopardy, self- incrimination), Article 14 (inviolability of the dignity of man, prohibition of torture for the purpose of extracting evidence) Article 24 (protection of property rights) and Article 25 (equality of citizens).

According to Dr Faqir Hussain, Justice A. R. Cornelius referred to FCR proceedings as 78obnoxious to all recognised modern principles governing the dispensation of justice" in the case of Sumunder vs State (PLD 1954 FC 228). In the decades following the promulgation of the 1956 constitution, the FCR has frequently come under review in the courts for repugnancy to fundamental rights. Successive judgements of the superior courts declared various provisions of the law void and inconsistent with fundamental rights. This judicial scrutiny, however, subsided with the Supreme Court verdict in the State vs Dosso (PLD 1958 SC 533), which justified the abrogation of the 1956 Constitution on the doctrine of "revolutionary legality". No serious challenge has ever been posed to the FCR since the revival of the

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constitution in subsequent years. The result is that the FCR thrives despite its failure to meet the test of compatibility with international human rights principles and the constitution of Pakistan and children as young as the two-year-old Zarmina are convicted under this anachronistic law. 79




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Chapter - III

History of the Laws & Justice System in FATA (Northwest Tribal Belt of Pakistan)

PART – ONE

550 B.C. – 1947 A.D.

Ancient Period 80

Except for the tribal annals the ancient history of the tribal belt is not known. Successive invaders have passed through this area or incorporated it within their empire, i.e., the Aryans (before 500 BC), thereafter the Achaemenians (i.e. Persians), Graeco-Scythian invasions (324-320 BC), Maurians (313-232 BC), Graeco-Bactrians (185-90 BC), and Sakas (i.e., Central Asians) invasion started from 97 BC. During the first millennium AD, Parthians, Yue-chi (i.e. Kushans), Sassanians, White Huns and Turks followed in succession. They have the admixture of various warriors who passed through this area. For instance, the Afridis have “an admixture of Greek blood.” Khurasani culture is visible in Pakistan west of Indus besides Central Asia and Afghanistan. During five hundred years before the birth of the Christ and for about two centuries, Gandhara [i.e., the general area from Islamabad to Kabul] was iranianized by the Achaemenians, for a century it was indianised by the Maurians, and for another century it had been Hellenized by Graeco-Bactrians, thereafter Saka nomadic invaders entered Gandhara. Pushto is probably a Saka dialect introduced from the north.

Turko-Pathan Supremacy 81

The era of spread of Islam in the tribal belt dates back to the rise of the Turkish dynasty in Ghazni about 960 AD. Mahmud of Ghazni conquered and incorporated areas of the subcontinent up to Lahore. Ghorid Sultan Muizzuddin Muhammad with his headquarters in Ghor subdued the north part of the subcontinent and was the founder of Muslim supremacy in Delhi in1206. The fall of Ghorids was followed by successive incursions of various forces from Central Asia. The most notable of these were those of world conquerors Chingiz or Ghengis Khan in 1221 and of Taimur or Tamerlane in 1398.

Mughal Supremacy


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Babur (1526-1530), a descendent of Taimur, came down from Central Asia to Kabul in 1504. He is the founder of the Mughal dynasty (1526-1857) in the subcontinent. The support of the tribesmen helped him in his conquest of India. “In all these expeditions there is no doubt that Babur’s armies were greatly strengthened by tribal contingents supplied by the Yusufzais and other tribes”. Not only Babur, but also the remaining Mughal rulers greatly “depended on Afghan mercenaries”. At the same time Babur’s main adversaries were the tribesmen on their own home ground. These stood on the lines of communication which a prospective conqueror of Hindustan, who starts from Central Asia, must secure and maintain through the hill country intervening between Kabul and the Jihlam [Jhelum] River. Many years were to elapse before Babur could do this, and reading between the lines of his story, we can see very clearly that he was in a continual state of anxiety and annoyance over difficulties that in fact he was never able entirely to resolve. Later emperors of his line were no more successful in achieving enduring solutions.”

He writes in a similar tone about Wazirs, but his hope of dominating them was never fulfilled. Similarly, the mighty Akbar the Great (1556-1605) could not prevail “in any decisive fashion against any of the tribes except those who found it to their interest, in return for consideration, to guard the King’s highway.” Thereafter “no serious endeavour was made by any of his successors or indeed by the Durranis who followed to bring any of the mountain regions under administrative subjection”

During the reign of Jehangir (1608-1627) and Shah Jahan (1628-1658), the wars against the Yousufzais and hillmeni continued. The Mughal rulers were also fighting for the possession of Kandhar. The struggle for Kandhar did not absolve the Mughals from the troubles in the tribal area. Jehangir in the third year of his reign, in 1607, visited Kabul. The most successful Mughal General Shah Beg who had taken possession of Kandhar some twelve years back was given governance over “the whole and troublous Sarkar of Kabul, Tirah, Bangash, Swat and Bajaur, with entire control over the Afghans of these regions, an assignment of their territories in jagir, and the title of Khan-i-Dauran (Chief of the Age)”. Shah Jahan appointed one brave General Said Khan from Kohat as Governor of Kabul and raised him to the rank of commander of 5000 horse. The NWFP in general, especially Khattaks along with a number of other tribes, were under revolt against the last powerful Mughal Emperor Aurangzeb (1658-1707). Thereafter the Mughal emperors were too weak to think of an adventurous course of controlling the tribes. 82

Durrani Supremacy

When Nadir Shah, the King of Persia, invaded India in 1739, the Afghan/Pathan contingent became the corps d’elite of his army. The Afghan/Pashtun corps of horse numbering between 4000 and 16000 was commanded by Nur




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Muhammad Khan, an Abdali of Alizai clan. They accompanied the king to India and “participated in all the dangers and successes of that compaign.”

Nadir’s support to Abdalis led to the jealousies of other ethnic groups in Persia and he was murdered in 1747 by Muhammad Khan Qajar, the founder of Qajar dynasty who succeeded him on the throne of Persia. The commander of Abdali contingent Ahmed Khan, aged 24, forced his way to the royal tent only to find Nadir dead. Ahmed Khan finding his patron dead made his way to Kandhar and then to Kabul along with his Abdali contingent. He is the founder of the independent kingdom of Afghanistan in that year. He was a “born leader … he had himself crowned as Ahmad Shah in Kandhar. He assumed the title Durr-i-Durran, Pearl of Pearls… From that time his tribe, the Abdalis [which is a branch of Saddozai clan] have been known as the Durranis.” Later he conquered and incorporated West Punjab and Kashmir in his empire and thus under him Afghanistan and most of the present day Pakistan were formed as one state.

Ahmad Shah Abdali (1747-1773) is the hero of the most important battle of Panipat north of Delhi in 1761, which he obviously fought with the help of Pathan tribesmen. He defeated the great army of Maratha confederacy. It was “one of the decisive battles of the world”, for it eliminated the prospects of Maratha domination over north India; it hastened the disintegration of the Mughal Empire, facilitated the rise of Sikhs in the Punjab, and finally paved the way for “the gradual extension of British authority to Delhi and later to the Panjab.” 83

Sikh Supremacy

The Durrani ruler of Lahore, Shah Zaman (1793-1800), the grandson of Ahmad Shah under compulsion of infighting at Kabul withdrew from Lahore in 1799 and appointed a Sikh leader, Ranjit Singh as his Viceroy. Maharaja Ranjit Singh (1799-1839) was an ambitious and capable ruler. He established Sikh rule in the Punjab. When he could not expand his empire towards east and south due to the presence of English, he decided to move towards the west. He was able to overrun the trans-Indus plains including Peshawar and Bannu.

The Sikhs’ rule around Peshawar was not stable. They “possessed but little influence in the trans-Indus tracts, and what influence they had was confined to the plains. Even here they were obeyed only in the immediate vicinity of their forts which studded the country”. The tribesmen checked the advance of Sikhs and safeguarded their independence as always in the past.




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British Supremacy

During early 19th century, the British had established their supremacy over the subcontinent except Balochistan, Sindh and the northwest tribal belt. All of these areas are now part of Pakistan. These were practically independent but theoretically under Kabul. The NWFP west of the tribal belt and the Punjab had become independent of Kabul under Sikh ruler Ranjit Singh. It was understood both in London and Calcutta, which was then the headquarters of the East India Company, that the Amir of Afghanistan was entering into secret negotiations with Russia. Accordingly, in 1838, the Government of India declared war against Afghanistan. Since Ranjit Singh, the ruler of the Punjab would not give passage to the English army through his territory, Auckland, the British Governor-General of India (1838-42), decided to dispatch his forces through Sindh. Earlier, Governor-General Lord Minto (1807-13), as a precaution against the threat of French invasion, had concluded a treaty of “eternal friendship” with the Amir of Sindh in 1809. Now, Auckland forced the Amir to agree to give passage to the English army and to contribute money towards the Afghan war and threatened him with “power to crush and annihilate them,” and that they “will not hesitate to call it into action, should it appear requisite, however remotely, for either the integrity or safety” of the British Empire. 84

In 1839, the British-led Indian Army passed through Sindh and Balochistan and conquered Kandhar and Kabul, the capital city of Afghanistan. The Army of occupation decided to stay back in Kabul. During the winter of 1841-42, there was a mass uprising against foreign forces and the Indian army comprising twelve thousand soldiers left the city of Kabul along with their followers and marched eastward in the direction of Jalalabad for safety. The tribesmen gradually destroyed the entire Indian forces while on retreat. By January 1842, only one Dr. Brydon was able to reach Jalalabad to narrate the tragic story of the massacre of their comrades. “A large British-led army had not been wiped out so completely in living memory.” The arrangement made by Sandeman is known as the Sandeman System. It rested on the occupation of central points in Kalat and tribal territory in considerable force, linking them together by fair-weather roads, and leaving the tribes to manage their own affairs according to their own customs and working through their chiefs and maliks. The maliks were required to enlist levies paid by government but regarded as tribal servants.

It is also known as the Khassadar system. For sometime there was no interference with the tribes. Sandeman adopted a policy in which he used the local

84 C. C. Davies, The Problem of the North-West Frontier 1890-1908, p. 21 cited in Lal Baha, N.W.F.P.

Administration, p. 4.

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tribes for purposes of policing the tribal area. He recruited tribesmen and formed khasadar Regiments. These Regiments took the place of the British Army in tribal area. Large subsidies were paid to the tribal maliks. These maliks had to perform certain difficult duties such as protecting merchants, keeping roads open and in case of trouble, finding out the troublemakers. The system of khassadars, or tribal police was somewhat successful in Balochistan. It was to give monetary benefits to the tribesmen under the supervision of maliks, in return for maintaining order in the tribe.

Forward Policy and Second Anglo-Afghan War (1878-79). There was a change in British policy after 1876. The encouragement due to increase of British resources owing to the conquest of Sindh (1843) and the Punjab (1849) as well as the concern among British strategists in England due to the advance of the Russian armies in Turkestan close to the borders of Afghanistan made them to review their policy. The policy of Disraeli who became the Prime Minister in U.K. in 1874 was to build a strategic line of defence against Russian advance in Central Asia. It was felt that sooner or later the British and the Russian forces would confront each other in Central Asia. This thinking led the British to increase their sphere of influence in Afghanistan. In 1876 Lord Lytton, the Viceroy of India wrote to the Secretary of State for India that:

“The more I think over the geographical facts of our position the stronger becomes my impression that the real key to it is at Kabul…from Herat to the north-east extremity of Cashmere [Kashmir] one great continuous watershed [of Hindu Kush mountain] seems to indicate the natural defensive bulwark of India. I am inclined to think that, if we took our stand along this line, with a sufficient margin north of it to leave us in command of the passes on both sides, our position would be a sufficiently strong one for all defensive purposes.”85

Scientific Frontier and Durand Line (1893). Lord Lytton (1876-80) put forward the idea of a scientific frontier. Military experts came to be divided into two groups – the forward and the backward. The backward group advocated that Indus should be the frontier line because the tribesmen were troublesome and fanatic and would not tolerate interference; it was difficult to fight in the mountains; and it was very expensive to have British Cantonments in the tribal territory. The forward group advocated that the frontier should be from Kabul through Ghazni to Kandhar because unless the tribal country was occupied tribesmen would continue to give trouble; river frontier was not a frontier at all; tribal area could pay the expenses of military occupation if its mineral resources were developed; and even if the policy was expensive it must be adopted for the sake of India’s security. For sometime the British policy oscillated between the backward and the forward schools. In the time of Lord Lansdowne (1888-94) a compromise was arrived at. The boundary between Afghanistan and India was drawn on scientific lines keeping in view the requirements

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of defence. The dividing line came to be known as the Durand Line. Accordingly, in 1893, Sir Mortimer Durand concluded an agreement with Amir Abdul Rehman of Afghanistan fixing the boundary line from Wakhan in the north to the Iranian border in the south (i.e. the junction of Iran, Afghanistan and Balochistan). There was also some adjustment of territories. For instance, the British Government agreed to Amir of Afghanistan retaining Asmar and the Amir in turn agreed that “he will at no time exercise interference in Swat, Bajaur and Chitral”. Similarly, the British Government agreed to leave to the Amir a portion of Waziristan (i.e. Birmal) and Amir relinquished his claim to the rest of the Waziristan. A clause in the agreement stated:

“The Government of India will at no time exercise interference in the territories lying beyond this line on the side of Afghanistan, and His Highness the Amir will at no time exercise interference in the territories lying beyond this line on the side of India.”

Hit and Run Policy and War with Tribes 1897-98. In the beginning the English had adopted an attitude of conciliation. Frontier duties were abolished, free trade was established, medical facilities were provided and tribesmen were recruited in the army and the police. Since this policy could not remove the basic cause of the trouble—the economic needs of the area–it failed. The tribesmen continued to plunder the British territory. To check this, the policy of reprisals—fines, blockades and expeditions—was adopted. These methods were used to force the tribesmen to come to terms. This was called the “Hit and Run Policy”. It also did not succeed, as it was unjust because the whole tribe suffered for the mischief of some individuals.

The unjust policies and the intrusion of British forces, especially in Waziristan was seen by tribesmen as a “menace” to their independence. When in June 1897, the Political Agent had gone with a military escort to select a site for a levy post in Maizar, a Waziri village, in North Waziristan, they were “at first hospitably received, but suddenly attacked. All their officers [who were British] were killed or wounded…” This was followed by an attack by tribes of Malakand against the garrisons in the pass and in Chakdara. By August, Mohmands attacked at Shabqadr, and later Afridi and Orakzai attacked at Tirah and the Khybar post was lost by the British. The Samana forts were attacked and “the garrison in one case wiped out to a man.” Later Khyber was reoccupied and Khyber Rifles were re-established and new roads and more forts were built. 86

This uprising involved bulk of the tribes, i.e., Darwesh Khel Waziris, the Swatis, the Mohmands, the Afridis and the Orakzais. But fortunately for the British the Mohmands “the most formidable of all the tribes” did not rise in 1897.

86 J.A. Norris, The First Afghan War, 1838-42 (Cambridge, 1967) cited in Alan Warren,

Waziristan, The Faqir of Ipi, and the Indian Army (Karachi: Oxford University Press), 2000), p. xx.

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Withdrawal and Concentration Policy. After the 1897-98 war with tribes, the controversy between the backward and the forward schools assumed a new meaning. Now the controversy was whether the tribal territory up to the Durand Line should be occupied or should the British fall back upon Indus. The tribes who had neither been consulted nor considered did not like this change and interference in their affairs. They resented the loss of their independence and uprisings continued.

To meet the situation Lord Curzon (1899-1905) adopted a policy of “withdrawal and concentration”–withdrawal from the advanced posts, employment of the tribal forces for the defence of the tribal country, concentrations of British forces in British territory as the second line of defence and the improvement of the means of transport and communication. This policy continued up to 1919. By January 1899, about 10,000 British troops had been stationed on the northwest frontier. Lord Curzon gradually withdrew large number of troops from certain areas including the Khyber Pass (except Jamrud) and the Kurram valley (except Thal) and Waziristan but concentrated troops in British lines and also deployed in lieu levies commanded by British officers and retained troops at Chakdara, Malakand and Dargai.

British Operations in Waziristan.

British Operations in Waziristan. Because of their superior firepower and later on the air power, “the British penetrated their every valley many times and established roads and forts in all directions; but none of these disarmed the inhabitants, or administered the country, or succeeded in imposing taxation.” In 1860, the Mahsud country was first penetrated by a British military column in retaliation for their attack on Tank by a 3000 strong lashkar. Again, in 1894/95, the British penetrated their country in retaliation of night attack by 2000 Mahsuds on the Wana camp. Third Anglo-Afghan War (1919) and British Operations in Waziristan (1919-20). Lord Curzon, Governor-General of India (1899-1905) could not succeed in pacifying the tribes and continued to face difficulties in the tribal areas. The British were relieved of the fear of advance of Russia towards India when the ‘Great-Game’ ended by the signing of the Anglo-Russian Convention of 1907 recognizing Afghanistan and the Persian Gulf as part of British sphere of influence. The First World War (1914-18) finally altered the situation. The British were obliged to maintain military pickets and posts at important points, the regular troops were given the duties of militia for policing the tribal areas. At the same time attempts were made to open up the tribal area by building roads and opening schools. There was, therefore, restlessness in the tribes.87

87 Federally Administered Tribal Areas of Pakistan By Noor ul Haq, Rashid Ahmad

Khan, Maqsudul Hasan Nuri Published by Islamabad Policy Research Institute, 2005

Original from the University of Michigan Digitized 28 Aug 2008 ISBN 9698721126,

9789698721121 90 pages

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In April 1919, Amir Amanullah, the ruler of Afghanistan, under the pressure of anti-British sentiments of his own people decided to fight a war with the British but the use of “aeroplanes, wireless and high explosives” enabled the British Indian Army to defeat the Afghan army and a peace treaty was concluded. During the war the British forces had occupied the tribal country, which continued till the British left in 1947, but Wazir-Mahsud insurgency persisted between the two World Wars.

The war of 1919-20 in Waziristan was different from nineteeth century operations. It was a twentieth century warfare in which latest weapons of the Great War (1914-18) such as mountain howitzers and aeroplanes were used. It will be interesting to read the comments of the Commander-in-Chief of the Indian Army in his official dispatch of 1 August 1920 referring to the operations as…of unparalleled hard fighting and severity. The enemy fought with a determination and courage which has rarely, if ever, been met with by our troops in similar operations. The character of the terrain, combined with trying and arduous climatic conditions, alone presented difficulties before which the most hardened troops might well have hesitated.

Thereafter the British faced constant trouble with the tribes such as in 1930, 1933 and again from 1937 to 1940.

The tribes would not spare the Government of Afghanistan either. In 1933, during the reign of Nadir Shah, the King of Afghanistan, a strong lashkar of both Wazir and Mahsud tribes crossed the Durand Line and invaded Matun in Khost province of Afghanistan. The British Government of India had taken air action against them to break up the lashkar.

British Policy Options and Modified Forward Policy. After the operation of 1919-20, the British Government considered following policy options:

(i) Withdrawal of troops from areas west of River Indus and peaceful penetration by giving responsibility to the tribes for maintenance of law and order.

(ii) The ‘close border’ policy that would content itself with the establishment of a strong military and police cordon, following the junction of the foothills and of the plain.

(iii) The “forward” policy that advocates a sufficiently firm occupation of the mountainous country as far west as the Durand Line, with a view to securing thereby the tranquility of the lowlands of the Indus Valley.

Finally, complete occupation of the territory “was formally accepted by the Government of India as a part of a fixed policy declared in September 1922.”

The policy adopted by the Government after 1919-20 Waziristan campaign was called “Modified Forward Policy.” It required to build roads, maintain about

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4600 khassadars and 5000 troops at Wana and Razmak. The khassadars were mainly local tribesmen. They were required to perform watch and ward duties. 88

According to official figures approximately 32,000 regular troops and 5000 irregulars (Tochi and South Waziristan Scouts) took part in the battle. The estimated number of casualties amongst tribes cannot be ascertained. The Indian air action against villages could and did destroy the houses of the affected tribes as a “penalty for specific outrages”. The number of casualties sustained by British Indian army during six months was officially given as 163 killed and 440 wounded as under:

Killed Wounded

British Officers 13 15

British Other Ranks 17 55

Indian Officers 4 11

Indian Other Ranks 129 359

All British efforts to apply the Sandeman system in Waziristan failed. To pacify Wazirs and Mahsuds, money was being freely doled out either as “tribal allowances” or military pay or wages for the work done for construction of roads etc. or for goods sold and services rendered to the regular troops. “Still the wild population remained untamed” but the intensity of raids by Wazirs and Mahsuds was reduced from four hundred to two hundred per year. The intensity of raids can be visualized by tribal raids across the Waziristan border in only two adjacent districts, i.e. Bannu and Dera Ismail Khan as given in Appendix IV. The records in the India Office Library and Records are silent after 1942, perhaps due to heavy involvement of the British in the war up to 1945 and thereafter in transfer of power in the subcontinent.

British Administration of the Tribal Belt

The conquest of Sindh (1843) and the Punjab (1849) brought the English to the natural limits of the plains of the subcontinent towards the northwest. The administration of the plains of the region was entrusted to the British Government of the Punjab Province. Five districts, i.e., Peshawar, Kohat, Bannu, Dera Ismail Khan and Dera Ghazi Khan, were created as frontier districts and were designated as settled areas/districts as distinct from the tribal territories. The Punjab Government had to perform dual function of administering these districts as well as the management of the tribes to the west of these districts to ensure security from frequent tribal raids. 89

88 www.answer.com 89 Report of the Tribal Control and Defence Committee, 1931, P.S.D.L., B-293, cited in Lal Baha, p.105.

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Since the tribal area was too wide to be defended by the available armed forces, the British had to depend on the political management of the tribes. In 1877, Lord Lytton, the British Viceroy, instead of depending on the provincial government of the Punjab, devised a system whereby the central government itself would have direct control over frontier administration and policy. To achieve this purpose the system of political agencies was started in the tribal belt. As districts were the administrative units in the rest of India, agencies were created in the tribal area. The administrative control of an agency was entrusted to a Political Agent who was a counterpart of the Deputy Commissioner in a district. The Agent was required to liaise with the tribes in the area of his jurisdiction.

Tribal levies and tribal militias recruited from local tribesmen were raised to assist the Political Agent for policing the area to establish peace and security. Gradually pickets, posts and forts were built where the militia was to be stationed. The first agency, i.e. the Khyber Agency was established in 1879. In 1889, Gilgit Agency was formed. In 1890, with the agreement of Shiranis, Mahsuds and Darwesh Khel, Gomal Pass in South Waziristan was opened for traffic. Tribal levies were raised and levy posts were built. Accordingly, in 1891, the Samanah range was occupied to dominate Miranzai Valley and Southern Tirah. For this purpose posts and pickets were built at suitable points and occupied by tribal militia. In 1892, Turis, who were Ahl-e-Tashaee (Shias) and were in conflict with neighbouring Sunni tribe, allowed the British to exercise control over their territory. Kurram agency was soon set up in the area bringing it under British control. In 1893, Kurram militia was raised. Posts and pickets were built for them. This gave the British control over the Kurram route leading to Peiwar Kotal Pass to Ghazni and Kabul. This expansion alarmed the Amir of Kabul and is one of the reasons that the Amir signed the Durand Line agreement in 1893 so as to check further British advance. In 1895, Daurs and Wazirs of Tochi Valley allowed the government to occupy their territory and North Waziristan Agency were established. In 1896, South Waziristan Political Agency was created. This was followed by construction of militia posts and pickets and also increases in the allowance of Mahsud tribe. In 1895, Malakand Agency consisting of Dir, Bajaur, Swat and Chitral was created. The territories of Swat resisted for about 30 years till “purdah” of these areas were lifted and a political agency established there for the British forces. Purdah (i.e. curtain) means that they would not let the foreign forces enter their territory. “The phrase is a graphic one, constantly used by the tribes to emphasize the value they set on the inviolability of their country, to be preserved behind a veil as jealously as the modesty of a woman.” 90

Judicial and the Jirga System.

90 Mehrunnisa Ali, Pak-Afghan Discord: A Historical Perspective (Documents 1855-1979)

(Karachi: Pakistan Study Centre, University of Karachi), 1990, pp. 55-57.

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The unwritten law is that the Jirga (i.e. Council of Elders) takes decisions in civil and criminal cases of the tribe, which in the end overbear opposition, and is accepted as a unanimous decision. Jirga is a traditional institution for administration of justice. The British Government modified it and enforced it both in the tribal as well as in the settled areas of the respective Political Agencies. Under the revised version, a Jirga was to consist of not less than three persons. The Deputy Commissioner or the Political Agent would normally refer the case to a Jirga if he considers that there was likely to be a breach of peace, etc. If the Deputy Commissioner or the Political Agent did not agree with the recommendations of the Jirga, he would refer the case back to the same Jirga or appoint another Jirga. A separate feature of judicial system of the province including the tribal territory from the rest of the country was the Frontier Crimes Regulation (FCR). It was described as “an exceptional and primitive” regulation. It was enacted by the British Punjab Government in 1872 and revised in 1887 and 1901. These regulations authorize the Deputy Commissioner or the Political Agent to refer all criminal and civil cases to a Jirga.

Contribution in History.

All said and done, the tribes have had a great impact on the course of history of the region. In the ancient period when Alexander had entered territories in the present-day Pakistan, Chandra Gupta Maurya (324-300 BC) was present at Taxila (near Islamabad). Taking “advantage of the political turmoil and uncertainty caused by Alexander’s invasion [he] might have used the tribes to his own advantage.” His metropolis was Peshawar. His empire extended in the west to include Afghanistan and northern India to the east. Similarly, Raja Jaipal of Hindu Shahiya dynasty, who was ruling the subcontinent with his headquarters at Waihind (near Attock about 50 miles west of Islamabad), took a preemptive action, organized a coalition of forces of Hindu Rajas of northern India and invaded Subaktigin (977-997) of Ghazni. The Ghaznavids with the likely support of the tribes defeated Jaipal in the Kurram valley. Subuktigin’s son Mahmud annexed Peshawar in 1001 and thus founded the Muslim state in the region now forming northern Pakistan. 91 Brigadier B.P.T. O’Brien, the Director Intelligence, GHQ, India, appreciated that the failure of the AIML-INC [All-India Muslim league and Indian National Congress] agreement, which had already caused Hindu-Muslim fighting in the Punjab and the NWFP, would make large-scale Frontier trouble a certainty and might result in the calling of a Jihad. And, regardless of any political settlement, the potentiality of tribal unrest was greater than for many years in the past and dangerous months were June-September. He, therefore suggested that, under the circumstances, a settlement in India which placed ‘a Muslim State between Hindustan and the tribes would avert for an indefinite period the threat of a general frontier rising.’ The conversion of the NWFP to the idea of Pakistan and the fear of a revolt by the Muslim tribes against

91 H. de Watteville, Waziristan, 1919-20 (London: Constable and Co. Limited), 1925, p.6.

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the Hindu dominated INC [Indian National Congress] government, therefore, turned to be another catalyst leading to the British decision to divide the Subcontinent.

Appendix-I

Tribal Raids across the Waziristan Border into the Bannu and D.I.K. Districts (1910-42)

Year Number of Raids

1910-11 20 1911-12 14 1912-13 19 1913-14 20 1914-15 48 1915-16 172 1916-17 111 1917-18 80 1918-19 48 1919-20 324 1920-21 233 1921-22 129 1922-23 73 1923-24 44 1924-25 25 1925-26 7 1926-27 4 1927-28 7 1928-29 1 1929-30 1 1930-31 4 1931-32 3 1932-33 3 1933-34 1 1934-35 6 1935-36 13 1936-37 13 1937-38 57 1938-39 65 1939-40 119 1940-41 98 1941-42 60

Sources: IOL MSS EUR D 696/7, ‘Memorandum by His Excellency the Viceroy on Frontier Policy’, July 1939; IOL MSS EUR F 125/168, ‘Amended copy of a memorandum by Lord Linlithgow on Frontier Policy’, cited in Alan Warren, Waziristan, The Faqir of IPI, and the Indian Army (Karachi: Oxford University Press), 2000, pp. 293-94. 92

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Appendix- II

Durand Line Agreement-1893

Agreement between His Highness Amir Abdur Rahman Khan, G.C.S.I.,

Amir of Afghanistan and its Dependencies on the one part, and Sir Henry Mortimer Durand, KCIE, CSI, Foreign Secretary to the Government of India, representing the Government of India on the other part,-1893.

Whereas certain questions have arisen regarding the frontier of Afghanistan on the side of India, and whereas both, His Highness the and the Government of India, are desirous of settling these questions by a friendly understanding, and of fixing the limit of their respective spheres of -influence, so that for the future, there may be no difference of opinion on the subject between the allied Governments, it hereby agreed as follows:

(1) The eastern and southern frontier of His Highness's dominions, from Wakhan to the Persian border, shall follow the line shown in the map (not reproduced) attached to this agreement.

(2) The Government of India will at no time exercise interference in the territories lying beyond this line on the side of Afghanistan, and His Highness the Amir will at no time exercise interference in the territories lying beyond this line on the side of India.

(3) The British Government thus agrees to His Highness, the Amir retaining Asmar and the valley above it, as far as Chanak. His Highness agrees on the other hand, that, he will at no time exercise interference in Swat, Bajawar or Chitral including the Arnawai or Bashgal Valley. The British Government also agrees to leave to His Highness the Birmal tract as shown in the detailed map already given to His Highness, who relinquishes his claim to the rest of the Wazir country and Dawar. His Highness also relinquishes his claim to Chageh.

(4) The frontier line will hereafter be laid down in detail and demarcated wherever this may be practicable and desirable by Joint British and Afghan Commissioners, whose object will be to arrive by mutual understanding at a boundary which shall adhere with the greatest possible exactness to the line shown in the map (not reproduced) attached to this agreement, having due regard to the existing local rights of villages adjoining the frontier.

(5) With reference to the question of Chaman, the Amir withdraws his objection to the new British Cantonment and concedes to the British Government, the rights purchased by him in the Sirkai Tilerai water. At this part of the frontier, the line will be drawn as follows:

"From the crest of the Khwaja Amrani range near the Psha Kotal, which remains in

British territory, the line will run in such a direction as to leave Murgha Chaman and the Sharobo spring to Afghanistan, and to pass half way between the New Chaman Fort and the Afghan outpost, known locally, as Lashkar Dand. The line will then pass half way between the railway station and the hill known as the Mian Baldak, and turning southward, will rejoin the Khwaja Amran range, leaving the Gwasha Post in British territory, and the road to Shorawak to the west and south of Gwasha in Afghanistan. The British Government will not exercise any interference within half a mile of the road."

(6) The above articles of agreement are regarded by the Government of India and His Highness the Amir of Afghanistan, as a full and satisfactory settlement of all the principal differences of opinion which have arisen between them in regard to the frontier, and both the Governments of India and His Highness the Amir, undertake that

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any differences of detail such as those which will have to be considered hereafter by the officers appointed to demarcate the boundary line, shall be settled in a friendly spirit, so as to remove for the future as far as possible, all causes of doubt and misunderstanding between the two Governments.

(7) Being fully satisfied of His Highness's good will to the British Government, and wishing to see Afghanistan independent and strong, the Government of

India will raise no objection to the purchase and import by His Highness of amunitions of war, and they will themselves grant him some help in this respect. Further, in order to mark their sense of the friendly spirit, in which His Highness the Amir has entered into these negotiations, the Government of India undertake to increase by the sum of six lakhs of rupees a year the subsidy of twelve lakhs now granted to His highness.

Kabul;

H.M. Durand. 12thNovember, 1893

Amir Abdur Rahman Khan 93

Appendix - III

Formation of The North West Frontier Province Government of India Home Department Proclamation Public

No. 5780

Simla, the 25th October, 1901.

Whereas the following territories, that is to say the districts of Peshawar, Kohat and Hazara (as altered by the Notification of the Punjab Government No. 994, dated the 17th October, 1901) the Bannu and Marwat Tehsils of the district of Bannu and the Tank, Dera Ismail Khan and Kulachi Tehsils of the district of Dera Ismail Khan (as altered by the Notification of the Punjab Government No . 993, dated the 17th October, 1901) are part of the dominions of His Majesty the King, Emperor of India;

And whereas it is expedient that the said territories, which are not under the administration of the Lieutenant Governor of the Punjab should be formed into a separate Province and constitute a Chief Commissioner-ship under the administration of a Chief Commissioner.

Know all Men, and it is hereby proclaimed, that His Excellency, the Viceroy and Governor-General of India in council, in exercise of the powers conferred by Section 3 of the Government of India Act. 1854 (17 & 18 Vict., c. 77) and with the sanction and approbation of the Secretary of State for India, is pleased hereby to take the said territories under his immediate authority and management on and with effect from the ninth day of November, 1901, and further to direct that, on and with effect from the said ninth day of November, 1901, the said territories shall be formed into a separate Province and constituted a Chief Commissionership, to be called, the Chief Commissionership of the North West Frontier Province and to be administered by a Chief

Commissioner.

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By order of His Excellency the Viceroy and Governor-General of India in Council,

J.P. NEWETT.

Secretary to Government of India 94

PART - TWO

FATA AFTER INDEPENDENCE: 1947-2001

According to Mian Jaffari Shah, a former Education Minister of NWFP and a close associate of Quaid-e-Azam, who had arranged a meeting between the Quaid and Ghaffar Khan in June 1947 in Delhi, the latter had put three conditions before the former for extending cooperation on Pakistan. One of the three conditions was the merger of Tribal Areas of Pakistan with the settled areas of NWFP. In response the Quaid had shown his willingness; but he asked Ghaffar Khan to mould public opinion in the Tribal Area so that the proposal could be implemented through voluntary consent. Democrat and constitutionalist as he was, the Father of the Nation wanted to bring any political and administrative changes in the country only through a democratic process based on the exercise of the free will of the people. He did not want to impose his views on the people of any region of Pakistan. His response to the condition laid down by Ghaffar Khan clearly showed that he realized the need for changing the status quo in the tribal areas created by the British to serve their colonial interests, but he wanted to do so with the consent of the tribal people and consult them before introducing any reforms.

The policy that the new state of Pakistan planned to follow towards the Tribal Areas was clearly outlined in the address the Quaid delivered to the tribal elders in Peshawar during his first visit to the areas in April 1948. In his address the Quaid assured the tribal chiefs that “Pakistan would not hesitate to go out of the way to give every possible help-financial and otherwise to build up the life of our tribal brethren across the border.” He made it clear that Pakistan “had no desire to interfere in their internal freedom; rather it wanted to put them on their legs through educational, economic and social uplift as self- respecting citizens, who have the opportunities of fully developing and producing what is best in you and your land.” In his address, the Quaid also reaffirmed “the policy of continuing allowances”, and said that the “existing arrangements would not be modified except in consultation with them and as long as they remained loyal and faithful to Pakistan.” 95




95 Ahmad, Waheed, ed. Quaid-e-Azam Mohammad Ali Jinnah: The Nation’s Voice, Vol.VII:, (Karachi:

Quaid-e-Azam Academy, 2003), pp346-349

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However, the Quaid was in favour of changing the status quo for the better. This was evident from what he said in the same address. While reaffirming that the new state of Pakistan would not resort to interfering in the internal affairs of the tribal people, the Quaid-e-Azam also made it clear that Pakistan did not want the tribal people to remain permanently dependent on “annual doles as has been the practice hitherto, which meant that at the end of the year you were no better off than the beggars, asking for allowances, if possible a little more.” 96

The desire of the Quaid, however, was not translated into reality. The political leadership that succeeded him preferred to continue the policy that was shaped by the British to serve their colonial interests. The British policy towards the Tribal Areas was dictated by the imperative of containing Russia and after the Socialist Revolution of 1917, the Soviet Union, beyond the British Empire in India. Under this policy, which was called ‘The Close Border Policy’, the British established direct rule in the settled areas of North West Frontier Region while the tribes in the Tribal Areas were left to administer their own affairs. The tribesmen were allowed entry into British territory and to trade freely while the British officers were instructed not to cross into tribal territory. Agreements were made with the tribes obliging them to maintain peaceful and friendly relations with the Government. According to British writers, “the tribesmen frequently broke these agreements and the Government had to stop the allowances, impose fines or blockades; and when all these proved unavailing, to send expeditions into the tribal territory. Between 1849 and 1889, the British Government undertook as many as sixty two expeditions.”

The British were successful in containing the tribes through friendly agreements, grants of allowances and subsidies and use of force. Almost all the military expeditions resulted in the signing of new agreements with the tribes, which inter-alia made them responsible for keeping peace in the areas. In return the government was committed to pay them allowances.

Pakistan’ policy towards the Tribal Areas

For the purpose of a more comprehensive discussion and analysis of Pakistan’ policy towards the Tribal Areas, this chapter is divided into the following two parts:

(1) 1947-1979

(2) 1979-2001

1947-1979

96 Ahmad, Waheed, ed. Quaid-e-Azam Mohammad Ali Jinnah: The Nation’s Voice, Vol.VII:, (Karachi: Quaid-e-Azam Academy,

2003), p.346-349

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The year 1947 marked a turning point in the history of the Tribal Areas, as a new and independent state of Pakistan replaced the alien rule of the British colonialists. With the termination of the British rule in India in 1947, all those agreements and treaties which bound the Tribal Areas with the British Government in Delhi were abrogated under the Indian Independence Act, 1947. Constitutionally, the Tribal Areas became independent and it was up to the new state of Pakistan to enter into fresh agreements and treaties with the tribal chiefs. The tribal chiefs (maliks) were also cognizant of the fact that they would have to enter into new arrangements with Pakistan under terms and conditions that would guarantee the rights and privileges they enjoyed under the British. For this purpose, the new state of Pakistan secured through its political agents in the tribal agencies an agreement with the tribal chiefs (maliks) in 1947. Under this agreement the maliks declared the Tribal Areas a part of Pakistan and pledged to provide any help to the new country whenever the need arose. They also made a commitment “to be peaceful and law abiding and to maintain friendly relations with the people of the settled districts.” In return and “on the foregoing conditions the Government of Pakistan pledged to continue the existing benefits.” The Government of Pakistan also made a commitment to maintain the existing internal arrangements in the tribal areas. To provide a legal and constitutional cover to these agreements, the Governor General of Pakistan issued a series of orders and notifications. Under these orders and notifications, the Tribal Areas were declared part of Pakistan with effect from 15 August 1947. The Governor-General of Pakistan assumed direct jurisdiction of the tribal Areas. 97

Agreement with Tribal Chiefs – 1951-52

In a subsequent development, the Government of Pakistan entered into revised agreements with the tribal chiefs in 1951-52 acquiring greater control and authority in the Tribal Areas. These agreements were concluded with the willing cooperation and the goodwill of the Tribal people, and were meant to enlarge the scope of the existing agreements. 98 From 1947 till the formation of One Unit in 1955, the NWFP Governor acted as agent to the Governor-General of Pakistan in relation to the administration of the Tribal Areas, and exercised immediate authority in those areas. His Secretariat, known as the “Local Administration of NWFP”, headed by the Chief Secretary, dealt with all matters in respect of the Tribal Areas. All policy directives from the Federal Government were communicated to the Chief Secretary, who furnished the compliance reports to the Federal Government. Since there were no Divisional Commissioners in those days, the Political Agents and the Deputy Commissioners used to correspond directly with the local administration.

97 Government of Pakistan, Revised Agreements with the Tribal People, Peshawar, 1947, cited in Shah, op.

cit, p. 70

98 Indian Independence Act, 1947, Chapter 30, Section 7 (1), C

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On the formation of West Pakistan (One Unit) in 1955, the administration of the Tribal Areas was taken over by the Governor of West Pakistan; and the Federal Government was left only with policy control. Under new set up, the West Pakistan Governor, acted as Agent to the President of Pakistan. These arrangements continued till 1958.

Revision of Administrative Set up of Tribal Areas (1958)

In October 1958, the administrative set up of the Tribal Areas was reviewed; and it was considered imperative that the system of administration on the spot should have centripetal quality. Consequently, administration of all the Tribal Areas was vested in the Resident Commissioner from November 1959 to August 1960, thereafter, these areas continued to be administered directly by the West Pakistan Government. The post of Resident Commissioner, however, was abolished in 1960 as an economy measure, but evidently, the real cause of the change over was the dual control of the Resident Commissioner by the Federal Government and the Provincial Government. Although the 1956 Constitution was based on the integration of West Pakistan into One Unit, the political parties with their support base in the former provinces, especially Sindh, NWFP and Balochistan did not accept the merger of these provinces into One Unit. They continued to demand the dissolution of One Unit and the revival of the former provinces. National Awami Party (NAP), which was supported by the Pashtun and Baloch nationalists, was in the forefront of the struggle for the revival of the former provinces. The mass movement against Ayub Khan, which forced Pakistan’s first military ruler to step down in 1969, had incorporated the dissolution of One Unit as one of the main items on its agenda. Thus, General Yahya Khan, who took over from General Ayub Khan accepted the demand for the dissolution of One Unit. On July 1, 1970, One Unit was dissolved and the former provinces of West Pakistan, namely Punjab, Sindh, NWFP and Balochistan were revived. With the dissolution of One Unit, the Tribal Areas of Dir, Swat, Chitral, Malakand Protected Areas, and the Hazara Territory, were included in the NWFP. Similarly, the tribal Areas of Balochistan, namely the Districts of Zhob, Sibi, Loralai and Chagai were made part of Balochistan. The rest of the Tribal Areas, namely the Agencies of Mohmand, Kurram, Khyber, Bajaur, Orakzai, North Wazirstan, South Wazirstan, and the adjoining areas of Kohat, Peshawar, Bannu and Dera Ismail Khan Districts were declared as Federally Administered Areas (FATA). 99

The Tribal Areas of Pakistan could, therefore, be divided into the following three categories:

(a) Federally Administered Tribal Areas (FATA) (b) Provincially Administered Tribal Areas (PATA) of NWFP (c) Provincially Administered Tribal Areas (PATA) of Balochistan




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The administration of PATA of NWFP and Balochistan is the direct responsibility of these two provinces; while the responsibility of administering FATA rests with the Federal Government through the Governor of NWFP in his capacity as an Agent to the President of Pakistan.

Reasons for, why control over FATA entrusted directly to the Federal Government

There are two reasons why control over FATA has been entrusted directly to the Federal Government.

One:

In view of the sensitive nature of Durand Line as an international border between Pakistan and Afghanistan, the Federal Government wanted to look after the issues of security in these areas. The issue of Durand Line will be discussed later in this chapter, but at this moment, it would suffice to mention that because of the tenuous nature of Pakistan-Afghanistan relations, the Pashtunistan issue and the ethnic based nationalist politics in NWFP, the Federal Government recognized the imperative of taking over the control of FATA, which are located along the Durand Line.

Two:

The Tribal Areas are the most under-developed and poor region of Pakistan. The British Government deliberately kept these areas underdeveloped in order to keep the people of these areas dependent upon the allowances and subsidies from the British Government. Unfortunately, no government of Pakistan from 1947 to 1972, made any serious effort to undertake development of these areas. In order to bring the Tribal Areas at par with the settled areas of NWFP, a gigantic effort for initiating development work was needed, which could only be undertaken by the Federal Government.

Administration of FATA

Administratively, FATA is divided into seven political agencies i.e. Bajaur, Mohmand, Khyber, Orakzai, Kurram, North and South Wazirstan, and six Frontier Regions: Peshawar FR, Kohat FR, Bannu FR, D I Khan FR, Tank FR and Lakki Marwat FR. So far as the political agencies of Khyber, Kurram, North and South Wazirstan are concerned, there has been little change in the administrative set up since their creation more than a century and a quarter ago. The other three agencies were created after the establishment of Pakistan in 1947.

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As has already been mentioned, Pakistan accepted the autonomous character of FATA through the famous Instrument of Accession signed by the Father of the Nation Quaid-e-Azam Mohammad Ali Jinnah, at the Bannu Tribal Jirga in January 1948.

But it must be said that there was no fundamental change in the policy of the government so far as administrative and political structure of the Tribal Areas was concerned. The Government of Pakistan continued to deal with local tribal chiefs (Maliks) through the Political Agents instead of establishing contacts with the people at grass-root levels. The system of allowances and subsidies continued. Although as mentioned earlier, Quaid-e-Azam had expressed his dislike for the system based on allowances and subsidies. He wanted to do away with that system as soon as possible and bring the people of the Tribal Areas at par with the people of the other parts of Pakistan. But no effort was made to change the humiliating system introduced by the British for their colonial interests.

In 1950, a prominent politician and close associate of Quaid-e-Azam, Qazi Isa made a strong plea to the then Prime Minister of Pakistan, Mr. Liaqat Ali Khan that the policy of the Government of Pakistan towards the Tribal Areas should be changed. The Government should establish direct contact with the people of the Tribal Areas, instead of dealing with the Maliks, whom he called corrupt and dishonest. In a letter from Quetta in February 1950, while discussing the situation in the Provincially Administered Tribal Areas (PATA) of Balochistan, he told the Prime Minister of Pakistan:

“The only means of contact that our officials have got with the tribesmen is through so-called tribal leaders—a much discredited lot imposed upon the tribesmen by the former alien government. In the past, the practice had always been to blackmail the government through large and unreasonable demands by these so-called leaders with the backing and connivance of local political authorities, who were always shareholders in what they secured from the government. This technique under the changed circumstances can never succeed and what is required is to win over the masses, which can be done very easily without any cost to the government. I for one am quite prepared to shoulder this responsibility and prove to you that through direct contact we can achieve a lot.”

However, the Ministry of States and Frontier Affairs, which was responsible for FATA also, disagreed with Qazi Mohammad Isa. In a note on the letter of Qazi Isa, the Secretary Ministry of States and Frontier Affairs wrote:

“If the Sardars (Maliks) were really a spent force as Mr. Qazi Mohammad Isa would have us to believe, then the Afghan Government would not be working through them and use them as vehicles for enforcing their authority on the other side of Durand Line.”

From the note of the Secretary to the Ministry of States and Frontier Regions, it was obvious that Pakistan’s relations with Afghanistan were a major factor in

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determining its policy towards the Tribal Areas. Afghanistan had adopted a hostile attitude towards Pakistan right from the beginning, refusing to recognize the Durand line and stirring trouble in the Tribal Areas across the Durand Line. For this purpose the then Afghan Government was using the tribal leaders to create trouble. Since Pakistan’s policy towards the Tribal Areas was closely linked with its relations with Afghanistan it would be useful to have a brief discussion on the state of Pak-Afghan relations during the period from 1947 to 1972. This would put Pakistan’s policy towards the Tribal Areas in a proper and broader perspective.

1979-2001

This period can further be divided into three parts: the period of Soviet occupation (1979-1989), the period of mujahideen rule in Afghanistan (1992-1996), the period of Taliban rule (1996-2001) 100

(1979-1989)

During the period of direct Soviet occupation of Afghanistan (1979-89), the Tribal Areas of Pakistan were the most immediately affected areas due to close geographical proximity and common frontier with Afghanistan. With Pakistan becoming the frontline state in the war of resistance against the occupying forces, Tribal Areas bore the brunt of clashes between the Afghan resistance groups and the Soviet forces. There was a big influx of refugees into these areas; and all the tribal agencies were dotted with tented settlements of refugees. The Tribal Areas became the training and staging ground of Afghan mujahideen, who also used the areas for the purpose of providing medical aid to the wounded Afghan fighters. Since war of resistance (jehad) was the top priority, every thing was subservient to its objectives. The administration, local resources, including water, pastures, forestry and land were geared towards serving the objectives of jihad. During this period, the economy of the Tribal Areas, which was already underdeveloped, suffered enormously. There was great pressure on the local resources due to sudden and huge increase in the population as a result of the influx of millions of Afghan refugees.

Since the whole area had become a war zone and Pakistan had opened its borders to allow Afghan refugees to enter the country and take refuge in the frontier regions, there was no check on the border and anybody could enter Pakistan from the Afghan side. Similarly, the mujahideen groups would cross the Pak-afghan border at will. The Durand Line had practically ceased to exist with thee free movement of people, fighters, arms and ammunition across the international border between Pakistan and Afghanistan. The whole area became heavily armed with heavy

100 Article 246 of the 1973 Constitution of Islamic republic of Pakistan.

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weapons supplied by the United States to the Afghan mujahideen to fight against the Soviet forces. Under the impact of the ongoing jihad, the local administration, which already exercised nominal control over the tribal population, was rendered totally ineffective. The result was that every kind of illegal activity, like smuggling, drug trafficking and gun running was thriving in the tribal areas. The cultivation of poppy increased and the Tribal Areas became the biggest source of heroin supply in the world.

Due to war conditions, very little attention could be paid to development works. The economic conditions were in a bad shape, social and physical infrastructure was destroyed and environment degraded. jihad, drugs and gun running became the main source of livelihood for the local people. During this period, the Government of Pakistan neither could undertake any significant development works in the Tribal Areas nor control the activities of mujahideen and their local supporters from converting the whole area into their fiefs. The withdrawal of the Soviet forces from Afghanistan in 1989 under the Geneva Accords signed in 1988 plunged the country into the worst kind of anarchy and lawlessness. There was a bloody war between the Soviet installed Afghan regime in Kabul and the Afghan mujahideen groups, who mostly controlled the countryside. Although Geneva Accords had provided for a ceasefire, return of the refugees to their homeland and cessation of outside interference in the internal affairs of Afghanistan, conflict continued to take its heavy toll in terms of material destruction and human casualties. The mujahideen groups subjected the capital city of Kabul to heavy artillery and rocket bombardment, resulting in the demolition of all the major buildings in Kabul. Since there was total lack of security and peace, there was no question of the return of Afghan refugees to their country. The Tribal Areas, therefore, continued to be the home of millions of Afghan refugees; and with them the commanders and the fighters belonging to various groups of Afghan mujahideen based in Pakistan. With the common enemy i.e. the Soviet Union gone, the mujahideen groups were fighting among themselves. The Tribal Areas were directly affected by this infighting among the Afghan mujahideen, leading to further deterioration in the security and law and order situation in the region. 101

(1992-1996)

In 1992, the Soviet installed regime of Dr. Najibollah collapsed under pressure from the mujahideen groups and a mujahideen government headed by Sibghaitullah Mujadiddi was installed in Kabul. But Afghanistan continued to suffer from war and destruction as a result of civil war among various Afghan factions suffering much more under mujahideen control than under the Soviet occupation. There were more casualties and large-scale destruction in the city of Kabul. Since these mujahideen groups were heavily armed, courtesy American CIA, they were capable of inflicting 101 Facts about Pakistan By Pakistan Directorate of Films & Publications Published by Directorate of

Films and Publications, Ministry of Information & Broadcasting, Govt. of Pakistan, 1983 Original from the


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worst kind of destruction on the cities and on the civilian population. The continuing war among the Afghan factions caused further displacement of the civilian population and the number of refugees in Pakistan further increased. The Tribal Areas continued to be the abode of these Afghan refugees. The economic and social conditions in these areas further deteriorated. Since whole attention of the Government of Pakistan was focused on Afghanistan, they did nothing to make the writ of the government effective in these areas. The Tribal Areas were the centre of activities of various Afghan mujahdeen groups and the whole area was under their control. The local administration was helpless, because the mujahideen groups were heavily armed and enjoyed the support of higher authorities in Islamabad. As a result not only illegal activities like heroin smuggling, and gun-running thrived in the Tribal Areas, the region also witnessed the rise of extremist religious movements like Sufi Mohammad’s Tehrik-e-Nifaz-e-Shariat-e-Mohammadi (TNSM). This led to further complicating an already complex social, political and security situation in the Tribal Areas. This was the result of a policy of total neglect deliberately pursued by the successive governments of Pakistan to appease the Afghan mujahideen groups, who were deeply entrenched in these areas. 102

(1996-2001)

In 1996, Kabul fell to the student militia known as the Taliban, who suddenly appeared on the political horizon of Afghanistan and quickly wrested control of almost the entire country from the discredited mujahideen groups. The Taliban represented an extreme and harsh version of Sunni Islam, which they forcibly imposed on all sects of the Muslims in Afghanistan. Under the strict discipline of the Taliban, peace and security was established in the country, but Taliban rule in Afghanistan presented another serious problem for Pakistan. The Taliban had very close links with some of the religious political parties of Pakistan, like Jamiat-ul-Islam (Fazal) JUI(F) and Jamiat-ul-Islam (Sani) JUI(S). These political parties had their support base in the Tribal Areas. Thus through their links with some of the political parties of Pakistan, the Taliban were able to extend their political and religious influence in the Tribal Areas of Pakistan. Under Taliban rule in Afghanistan, the writ of the Government of Pakistan became further ineffective as the people from the Tribal Areas joined the Taliban in fight against the Northern Alliance. As there was no regulation of the movement of men and materiel across the international border between Pakistan and Afghanistan a large number of people from different regions of Pakistan crossed over to Afghanistan to join what they claimed was jihad against the forces of the Northern Alliance led by Ahmad Shah Masud. The government of Pakistan did nothing to check them. It was only towards the end of the Taliban regime in Afghanistan that the Government of Pakistan realized the dangerous implications of allowing unhindered and unregulated movement of people

102 Government and Politics in South Asia: Fifth Edition By Craig Baxter, Yogendra K.

Malik, Charles H. Kennedy, Robert C. Oberst Published by Westview Press, 2002

ISBN 0813339014, 9780813339016 456 pages

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across the Durand Line and took certain steps to check the entry of the people without valid documents. But this was resisted by the Taliban regime in Afghanistan, who wanted to move freely across the Durand Line in order to maintain their links with their companions in Pakistan.

Extension of Adult Franchise to FATA103

Although Pakistan adopted universal adult franchise as the basis of electoral process immediately after independence in 1947, the people of FATA were kept deprived of this fundamental democratic right for about fifty years. In the First Constituent Assembly of Pakistan (1947-54) FATA were represented by one member; whereas 4 states of the region, namely Swat, Dir, Chitral and Amb had 3 seats in the Assembly in accordance with the formula worked out by the Cabinet Mission Plan (1946). Under 1973 Constitution, the Maliks (numbering about 37000) constituted the Electoral College for the election to 8 seats of the National Assembly. Under the legal, political and constitutional reforms package of Musharrafi regime, known as Legal Framework Order (LFO) the number of National Assembly Members (MNAs) to be elected from FATA have been increased to 12. It was in 1996, that the federal government of Pakistan decided to introduce adult franchise in the Tribal Areas for the elections held in 1997. 104

The 1997 Elections were the first elections held in the Tribal Areas on the basis of universal adult franchise. According to the electoral rolls prepared for the 1997 elections, the total number of registered votes was 1.6 million, including 0.4 million female votes. The extension of adult franchise in FATA was a long-standing demand of the people of Tribal Areas. But the successive governments of Pakistan had been postponing this decision due to their policy of appeasement towards the tribal chiefs (Maliks), who feared the loss of their entrenched privileged positions in the areas in case method of direct elections was introduced. No wonder the decision was hailed as an event of great historic importance, which changed the entire socio-political structure of tribal society. The decision of introducing adult franchise was enthusiastically welcomed by the people of Tribal Areas. This is evident from the unusually large number of contesting candidates in the 1997 elections and quite encouraging turn out. Against the 8 seats of National Assembly, a total of 298 candidates jumped into the fray. The average turn out was 33.69 per cent. In some areas, like Bajur Agency, the turn out was 65 per cent; but in South Wazirstan, which is the center of Pakistan’s military operations against the suspected foreign militants, the turn out was reported to be as low as 19.64 per cent. In the last elections held on 10 October 2002, the total number of registered votes was 1289274. The number of male registered votes was 814921; while the number of registered female votes was

103 Indian Independence Act, 1947, Chapter 30, Section 7 (1), C

104 Pamela Constable, “Pakistan's Uneasy Role in Terror War; Conciliatory Approach to Tribal and

Foreign Fighters Leaves U.S. Officials Frustrated,” The Washington Post, May 8, 2004, p. A.08. (August 8,

2004).

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slightly higher than in the 1997 elections (469053). The average turn out was 25.48 per cent.

Appendix - I

Government's Agreement with the Tribal People (1951-52)

1. We proclaim that our territory is an integral part of the dominion of Pakistan and we are citizens of Pakistan.

2. We pledge our loyalty to the Constitution of Pakistan and the Government of Pakistan as by law established.

3. We shall remain peaceful and law abiding citizens of Pakistan and shall render every assistance to Government, whenever called upon to do so.

4. We and our tribes shall have no dealings with any other power and the friends of Pakistan shall be our friends and the enemies of Pakistan shall be our enemies.

5. We shall protect the rights and interests of Pakistan at all cost and shall faithfully abide by the directions given to us by the Government of Pakistan in this regard from time to time.

6. We shall render every assistance to the officials of the Pakistan Government in our areas and shall ensure their safety.

7. We shall facilitate the construction of roads, other public works, defence installations and establishment of communications in our areas and shall ensure the safety and protection of all Government property in our area. We shall also render every assistance to Government in the social and economic development of our area.

8. In the internal affairs of our tribe, the Pakistan Government will ensure the maintenance of our tribal customs and usages and all our tribal matters and internal disputes shall be settled in accordance with our tribal customs and in consultation with and through our tribal leaders.

9. The Government of Pakistan will continue to pay us our annual Muajib of Rs._____ for the tribe and Rs.________ as lungis for Maliks and representatives of our tribes. These grants will be subject to good behaviour and the fulfillment of the obligations detailed above, which our tribe has

undertaken upon itself.

10. We shall attend to all summons of the officers of the Pakistan Government and shall call on the Political Agent, to receive our annual Muajibs in the spring every year. If we fail to do so, the Muajibs for the year shall be forfeited to the Government of Pakistan.

11. That, we shall abide by all the previous undertakings given and agreements made by us, form time to time, with the Government.

Source: Ministry of States and Frontier Regions (States and Frontier Regions Division) "S" Block Pakistan Secretariat Islamabad.

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Appendix - II

Powers of the Governor as Agent to the President in the Special Areas of West Pakistan Province 105

The Governor of West Pakistan shall be the Agent to the President in the Special Areas of West Pakistan.

He shall ensure, that the administration in these areas in carried out in conformity with the policies laid down, and the directives issued, by the Central Government from time to time.

It will be his special responsibility to see that the Provincial Government and the officers charged with the administration of the Special Areas, take all such steps as may be necessary, for the implementation of policies laid down by the Government of Pakistan and for securing such national objectives, as may be specified within the shortest possible time, or within; such period as may be prescribed by the President in this behalf.

The Governor shall ensure that high priority is given to the development of Special Areas, and that adequate funds are placed by the Provincial Government at the disposal of the Divisional Commissioners of Peshawar, D.I. Khan, Quetta and Kalat and other officers and departments concerned, to carry out the development programme in those areas, within the schedule time.

The Governor will make all appointments to the posts of Divisional Commissioners of Peshawar, D.I. Khan, Quetta and Kalat and the Political Agents, after consulting the Central Government Ministry of States and Frontier Regions.

All appointments and transfers to administrative posts within the Special Areas will be made, as far as possible, in consultation with the Divisional Commissioners concerned.

All the Civil Armed Forces in West Pakistan, shall 'function under the Governor's supervision and operational control, subject to the administrative control and directives of the Central Government.

The Governor shall exercise such financial powers, in respect of the central funds allocated for these areas, as may be delegated to him by the Central Government, from time to time.

Subject to the directions, if any, of the Central Government, the Governor may delegate such of his powers to the Divisional Commissioners as may appear to him to be appropriate.

The Governor shall exercise all the powers of the former A.G.G. under the Grey Book, containing instructions regulating the use of Army and the Air Force for the maintenance of peace, and law and order in the Special Areas, except destructive air action against habitations, for which, the previous sanction of the Central Government will be necessary.

By order of the President of Pakistan

Sd/

105 Government and Politics in South Asia: Fifth Edition By Craig Baxter, Yogendra K. Malik, Charles H. Kennedy,

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N.A. Faruqui Cabinet Secretary

Appendix - III

Powers and Duties of the Divisional Commissioners of Peshawar. D.I. Khan, Quetta and Kalat in Relation to The Administration of

Special Areas of West Pakistan. 106

1. The Commissioners shall work under the supervision of the Governor of West Pakistan.

2. The Commissioners will ordinarily receive the orders of the President through the Governor, but in urgent cases, they may be addressed direct. In matters, in which the Central Government is interested, particularly in matters having a bearing on foreign policy and defence, the Commissioners may correspond direct with the Central Government in immediate cases provided that they will submit copies of all such correspondence to the Governor for information.

3. The Commissioners shall guide, supervise and control the working of all branches of administration in the Agencies, falling under their jurisdiction and in the Special Areas attached to the districts concerned.

4. The Commissioners shall exercise the powers of the F.C.R. within the areas under their administrative control.

5. The Commissioner of Peshawar Division shall supervise the work of the Tribal Publicity Organization at Peshawar, subject to the direction arid control of the Central Government. This organization shall prepare material for publicity keeping in view the needs of the Special Areas under the administrative control of the Commissioner of D.I. Khan Division as well.

6. The Commissioner of Peshawar Division shall guide supervise and control the functions of the Chief Powindah Officer and his staff in Peshawar and D.I. Khan Division.

7. The Commissioners may deputize for the Governor at the annual Jirgas in the latter's absence.

8. The Commissioners shall exercise such powers, as may be delegated to them by the Agent to the President or the Central Government, in respect of the Central Public Works within their jurisdiction.

9. The Commissioners shall exercise all the powers of the former Political Resident, North West Frontier, as laid down in the Grey Book, except powers to order destructive air action against habitations, for which prior sanction of the Central Government will be necessary.

10. The Commissioners shall be Chairmen of the Divisional Development Boards for the

development of areas under their jurisdiction.

11. Adequate secret service and entertainment grants shall be placed by the Provincial Government at the disposal of the Commissioners for customary payments to tribesmen.



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12. The Commissioners shall superintend and exercise operational control over the normal functions of the Frontier Corps and units of the Frontier Constabulary located in the Special Areas under their jurisdiction, subject to such directives as may be issued by the Agent to the President or the Central Government.

13. The Commissioners shall exercise the powers of sanctioning, suspending or confiscating any Maliki allowance and the powers to create new Maliks, in any tribe within their jurisdiction, subject to the approval of the Agent to the President and the Central Government.

14. The Commissioners of Peshawar and D.I. Khan Division shall exercise operational control over all Khassadars and Levies operating in the areas falling in their jurisdiction, subject to the overall financial and administrative control of the Central Government.

15. The Commissioners shall be responsible, for the implementation of the Central

Government's Policy, for the control of the visits of foreigners to areas under their jurisdiction.

By order of the President of Pakistan.

Sd/ N.A. Faruqui

Cabinet Secretary

Appendix - IV

Administrative Jurisdiction of the Governor NWFP in the Tribal Areas 107

From: The Joint Secretary, Government of Pakistan, Ministry of Home and Kashmir Affairs and States and Frontier Regions (STATE AND F.R. DIVISION) "S" Block, ISLAMABAD.

To:

The Chief Secretary, Government of NWF Province,

Peshawar.

Subject: Administration of the Centrally Administered Tribal Areas.

Sir,

I am directed to say that the marginally noted areas in North West Frontier have been defined in Article 3(a) of the West Pakistan (Dissolution) Order, 1970 as the Centrally Administered Tribal Areas. The Order further provides that these areas shall be administered by the President acting, to such extent as he thinks fit, through such officers as he may appoint; and the President may, in that behalf give such directions as he deems fit. In pursuance of these provisions the President has been pleased to



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direct that the Governor, NWF Province, shall act as Agent to the President for the Centrally Administered Tribal Areas, and shall exercise immediate executive authority in these Areas in such manner and to such extent as the President may direct from time to time.

1. Mohmand Agency. 2. Kurram Agency. 3. Khyber Agency. 4. North Waziristan Agency. 5. South Waziristan Agency. 6. The Tribal Areas adjoining Kohat District. 7. The Tribal Areas, adjoining Peshawar District. 8. The Tribal Areas, adjoining Bannu District. 9. The Tribal Areas, adjoining D.I. Khan. 10. The Tribal Areas of Malakand Division.

2. The Governor NWFP in his capacity as Agent to the President as notified in the States and Frontier Regions Division Notification No. S.R.O. 109(I)/70, dated the 25th June, 1990 shall exercise the following powers:

(i) He shall ensure that the administration in these is carried out in conformity with the areas policies laid down and the directives issued by the Central Government from time to time.

(ii) It will be his special responsibility to see that the Provincial Government and the officers charged with the administration of these areas take all such steps as may be necessary for the implementation of the policies laid down by the Government of Pakistan and for securing such national objectives as may be specified within the shortest possible time or within such period as may be prescribed by the President in this behalf.

(iii) He shall ensure that high priority is given to Development and that the funds placed at his disposal for development and administration are utilized in accordance with the policies laid down by the Central Government for the Centrally Administered Tribal Areas.

(iv) He shall supervise the operations and functions of the Development Corporation set up for the Centrally Administered Tribal Areas, in accordance with the policies laid down and directive issued by the Central Government.

(v) He shall make all appointments to the posts of Divisional Commissioners, Deputy Commissioners and the Political Agents concerned with the Administration of Centrally Administered Tribal Areas in consultation with the Central Government in the States and Frontier Regions Division.

(vi) The Civil Armed Forces in the NWFP and the Centrally Administered Tribal Areas shall function under his supervision and operational control subject to the administrative control and directions of the Central Government.

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(vii) He shall exercise such financial powers in respect of the Central funds allocated for these areas as may be delegated to him by the Central Government from time to time.

(viii) He shall subject to the directions if any of the Central Government, delegating such of his powers to the Divisional Commissioners as may be appear to him to be appropriate.

(ix) He shall exercise of all the powers as Agent to the President laid down in the Grey Book containing instructions regulating the use of Army and the Air Force for the maintenance of peace and law and order in the Tribal Areas.

3. I am also to say that the following arrangements shall be made for carrying out the administration of the aforesaid areas:

(a) The Local Administration in the North West Frontier Province as existed in the pre-Integration period shall be revived and placed under the Chief Secretary and shall be entrusted with the such powers and functions as were assigned to it in the pre-One Unit period.

(b) (i) The services of the Provincial Departments shall be utilized for catering to the needs of the Centrally Administered Tribal Areas within the sphere of their respective jurisdictions.

(ii) Each Secretary of the Provincial Government will act as the Secretary to Local Administration in respect of his Department and will be authorized to correspond direct with the States and Frontier Regions Division with regard to matters falling within his jurisdiction.

(iii) The Finance Secretary, NWFP, will in addition to his duties as Finance Secretary, work as Financial Advisor to the Local Administration in respect of the aforesaid areas.

(c) The Development Corporation set up for the Centrally Administered Tribal Areas shall be responsible for the formation of new Development Plans and their execution.

(ci) The day-to-day administration of the area will be the responsibility of the Political Agents/Deputy Commissioners in the Tribal Areas which shall be carried out by them under the supervision/direction of the Divisional Commissioners and the Local Administration of NWFP.

4. In the Central Government the States and Frontier Regions Division shall exercise powers and functions in every sphere of Governmental activity and consult other ministries of the Government wherever necessary.

5. The Central Government shall maintain the Civil Armed Forces (Frontier Corps, Frontier Constabulary, Khassadars and Levies) and exercise the overall Administrative and Financial Control, over these Forces.

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6. As regards the Tribal Areas which are not Centrally Administered Tribal Areas and form part of the Provinces of NWFP, and Balochistan, the States and Frontier Regions Division shall deal with the following subjects in respect of these Tribal Areas.

(1) Issue of Policy directives. (2) Security of the external boundaries of the Tribal Areas. (3) Extension of effective control unto the Durand Line. (4) Application of Laws. (5) Reforms in Dir, Swat and Chitral. (6) Counteracting of Afghan and Russian influences and watching the

Political trends of the tribes. (7) Issue of Import Licenses. (8) Policy regarding de-tribalization of the Tribal Areas. (9) Control over the Civil Armed Forces. (10) Policy regarding Khassadars/Levies, Frontier Corps and Frontier

Constabulary deployed in these areas.

Your obedient servant,

BRIG. S.M. ISMAIL KHAN, Joint Secretary,

Government of Pakistan

Copy forwarded to the Chief Secretary, Balochistan, Quetta

BRIG. S.M. ISMAIL KHAN, Joint Secretary,

Government of Pakistan

Copy to all Ministries/Divisions.

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Part – Three (2001 – 2007)

PAKISTAN’S POST- 9/11 POLITICO-STRATEGIC RESPONSE

The Post-9/11 Developments

Pakistan army has launched four military operations in the tribal area since the September 11 attacks. The first was carried out on 27 June 2002; the second on 2 October 2003, the third on 8 January 2004 and the fourth, and latest one was launched on 13 March 2004. Pakistani security officials say that the earlier operations lacked the support of the local population and tribal elders. Nearly 30 Pakistani troops were killed, most of them in Zalikhel area of South Waziristan since January 2003. The much-awaited military operation was launched on 24 February after the expiry of the February 20 deadline. This involved 2,000 soldiers and militiamen (Wazirsitan Scouts and khasadars in villages of Zarkai, Kaloosha and Azam Warsak) near Wana, including SSG and the Quick Reaction Force, based in Tarbela. Nearly 14 helicopters ferried these troops on “search and destroy” missions. This was the fourth operation launched against the tribal region since 9/11. It is said that about 20 local tribesmen including some foreign women were captured while the houses of those tribesmen suspected of providing shelter to militants were razed. Saudis, Egyptians, Yemenis, Uzbeks and Chechens were supposed to be located in the area. The army and local scouts established 26 new check posts to block entry and exit points before launching of the operation. 108

Some members of IMU from Kazakhstan and other Central Asian republics had come to Afghanistan; but could not return to their countries because of despotic regimes at home. Here, they were associated with Taliban and Al-Qaeda, although the real Al-Qaeda is made up of mostly Arabs who consider Osama bin Laden as their main icon. Some observers suggest that the Frontier Corps, belonging to the area and comprising Pashtuns, could have done a better job than the army regulars while remaining in a low profile. The strategy was to push these unwanted elements back into Afghanistan where nearly 1,500 US troops would encircle, capture and destroy them. According to government circles, the law of hospitality was not to be permitted to be abused by harbouring and launching of terrorist activities within or outside Pakistan. Besides, the tradition of launching of military operations against unruly elements was not uncommon in Pakistan’s history as had happened in Karachi, Balochistan and in Northern Areas.

Meanwhile, the Pakistan Interior Minister had stated that search and screening operations will continue to flush out terrorists in the tribal belt till they

108 Government and Politics in South Asia: Fifth Edition By Craig Baxter, Yogendra K. Malik, Charles H.

Kennedy, Robert C. Oberst Published by Westview Press, 2002

ISBN 0813339014, 9780813339016 456 pages

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were completely dislodged. Although the Pakistan government was at pains to rebut the accusation that American troops were deployed in the tribal agencies, speculations were rife that some elite commando unit, namely Task Force 121, a covert commando team involved in capturing Saddam Hussein, was shifted into the area to apprehend Osama bin Laden and Mullah Omar. Also, it was speculated that in lieu of allowing pardon to nuclear scientist Dr. Qadeer Khan by the US, Pakistan territory was being allowed to be used to hunt down the Al-Qaeda leaders and some other noted terrorists. For instance, in May 2004 there were two incidents of US military “intrusions” into the border areas of Pakistan. In case these foreigners, including from Al-Qaeda elements were handed over to Pakistani authorities, it was promised, they would not be extradited to their countries—an assurance looked at askance by the resident militants. But it was warned that in case these recalcitrant sub-tribes (Yarghulkhel and Karmandkhel) did not hand over the wanted men known for sheltering foreigners, they would face punitive actions. These included removal from service of all class IV employees, Rs. 50,000 daily fine, closure of schools, hospitals and other facilities in their areas. Besides, they would incur a collective fine of Rs. 5.4 million for firing from their territory with rockets on the army and FC camps in Wana. In addition, the government put pressure on their relatives by threatening to remove them from jobs. 109

Pakistan-US Military Cooperation

This necessitated close US-Pakistan military collaboration. To compound the above problems, all the pervious Afghan governments had not formally recognized the Durand Line of 1893. There were some stray claims of the historic boundary agreement having lapsed after 100 years, although there was no valid documentary proof. Moreover, the Karzai government stated that only a representative government in Kabul will be able to decide the final status of the Durand Line.

According to US Deputy Defence Secretary Paul Wolfowitz, Pakistan was cooperating with the US in destroying Al-Qaeda network and its leaders but was not doing so in case of the Taliban. However, the Bush Administration showed continued support and appreciation of Pakistani role in the war on international terrorism to the extent that it has till to date not expressed any disapproval of the Dr. A.Q Khan nuclear scandal and let it be considered as Pakistan’s “internal affair.” However, sections of the US media and some US scholars have voiced concern about lack of democratic progress in Pakistan, unsatisfactory reining in of some intelligence agencies and lack of essential reforms in the madrassah system in Pakistan. Further, they have urged the US administration to avoid supporting authoritarian and military regimes that were the bane of US policies in the Middle East since the Cold War days.




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Hunt for Osama Bin Laden and Mullah Omar: The Pakistani interest in capturing Osama bin Laden has intensified starting from early 2004. The December 2003 assassination attempts on President Musharraf in Rawalpindi had convinced the leadership that stringent measures needed to be taken against terrorist elements; secondly, the nuclear proliferation scandal forced Pakistan to repair relations with the US and work towards damage limitation; further, it was felt in some circles that capture of bin Laden before the US November general elections would not only bolster the US President’s re-election prospects but also solidify Pak-US relations. In March-April 2004, there was an upbeat mood of impending capture of the elusive bin Laden from the Pak-Afghan border. In fact, there was speculation in some quarters that Osama was already captured and detained and that the disclosure will be timed before US November 2004 elections. President Musharraf faces a dilemma: on the one hand he is trying to convince the US that he is fully collaborating in the fight against international terrorism and capture of Al-Qaeda and Taliban leaders, on the other hand he is avoiding to confront the MMA leadership and sympathizers of Al-Qaeda who could provoke an armed rebellion of the tribal people. In the October 2002 elections, the religio-political parties under the rubric of MMA scored 22 per cent of votes as compared to mere four percent in the 1997—winning sizable seats in the Centre and forming governments in the two bordering provinces of NWFP and Balochistan. 110

CHIEF EXECUTIVE’S ORDER NO. 39 OF 2002

AN ORDER 111

To repeal the Election of Members of Senate from the Federally Administered Tribal Areas Order, 2002

WHEREAS it is expedient to repeal the Election of Members of Senate from the Federally Administered Tribal Areas Order, 2002 (Chief Executive Order No. 25 of 2002); NOW, THEREFORE, in pursuance of the Proclamation of Emergency of the fourteenth day of October, 1999, and the Provisional Constitution Order No.1 of 1999, and in exercise of all powers enabling him in that behalf, the Chief Executive of the Islamic Republic of Pakistan is pleased to make and promulgate the following Order:- 1. Short title and commencement.- (1) This Order may be called the Election of Members of Senate from the Federally Administered Tribal Areas (Repeal) Order, 2002. (2) It shall come into force at once.




111 http://www.presidentofpakistan.gov.pk

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2. Repeal.- The Election of Members of Senate from the Federally Administered Tribal Areas Order, 2002 (Chief Executive’s Order No. 25 of 2002), is hereby repealed.

GENERAL PERVEZ MUSHARRAF, Chief Executive of the Islamic Republic of Pakistan, And Chief of Army Staff. _____________ MR. JUSTICE MANSOOR AHMED, Secretary.

CHIEF EXECUTIVE’S ORDER NO. 40 OF 2002 AN

ORDER 112

To prescribe the manner in which the members of the Senate from the Federally Administered

Tribal Areas shall be elected

WHEREAS it is expedient to prescribe the manner in which the members of the Senate from the Federally Administered Tribal Areas shall be elected and to provide for matters connected therewith and ancillary thereto; NOW, THEREFORE, in exercise of the powers conferred by paragraph (b) of clause (1) Of Article 8B of the Conduct of General Elections Order, 2002 (Chief Executive’s Order No. 7 of 2002), and all powers enabling him in that behalf, the President is pleased to make the following Order:- 1. Short title and commencement.- (1) This Order may be called the Senate (Election of Members from the Federally Administered Tribal Areas) Order, 2002. (2) It shall come into force at once. 2. Manner of election of the members of senate from the Federally Administered Tribal Areas and application of Act LI of 1975 and the rules made there under. – Members of the Senate from the Federally Administered Tribal Areas shall be elected by the members from the Federally Administered Tribal Areas in the National Assembly, in the same manner as members to fill seats in the Senate allocated to a Province are elected by the members of the Provincial Assembly and the Senate (Election) Act, 1975 (LI of 1975), and the Rules made there under, read with Notification bearing SRO No. 746 (I)/75, dated the 7th July, 1975, and SRO No. 747

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(I)/75 dated the 7th July, 1975, shall apply for the purpose subject to the modification that in the said Act,- (a) A reference to a Province shall be read as a reference to the Federal Administered tribal Areas; (b) Reference to the Provincial Assembly shall be read as a reference to the National Assembly; (c) A reference to the members of a Provincial Assembly shall be read as a reference To the members of the National Assembly from the Federally Administered Tribal Areas; (d) A reference to voter shall be read as a reference to a person who is a member from The Federally Administered Tribal Areas in the National Assembly; and Senate (Election of Members from the Federally Administered Tribal Areas) 2 (e) sub-sections (3) of section 23 shall have effect as if the following proviso were added thereto, namely:- “Provided that a voter who is a member of the National Assembly from the Federally Administered Tribal Areas shall have as many votes as the number of seats to be filled.”

GENERAL PERVEZ MUSHARRAF, Chief Executive of the Islamic Republic of Pakistan, And Chief of Army Staff. _____________ MR. JUSTICE MANSOOR AHMED, Secretary.

Appendix - I

PRESIDENT REVIEW LAW AND ORDER SITUATION, CALL FOR EVOLVING COMPREHENSIVE STRATEGY

President General Pervez Musharraf and Prime Minister Mir Zafarullah Khan Jamali Saturday called for evolving a comprehensive strategy to address issues pertaining to the improvement and maintenance of law and order in the country. The President and the Prime Minister stated this at a meeting, which took stock of the law and order in the country with a view to streamline short, medium and long term measures for improving the overall security environment. Finance and Interior Ministers, Governor NWFP, Chief Ministers of all the four provinces, and senior officials attended the meeting. The two leaders underlined that the provinces have a basic responsibility in maintaining law and order and assured them of full support of the federal government in this regard.

They appreciated the progress made in the implementation of Police Order 2002 in the provinces and said the provinces would be extended financial support.

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They also appreciated the efforts the provincial governments are making to generate their own resources for sustained implementation of the Police Order. The President emphasized that Pakistan is at the crossroads where after having reached an elevated international status and improved economy, it is poised to march ahead on the path of progress. However, he said there was a need for improvement in law and order in the attainment of these objectives. He said that although a lot of effort is being made to achieve the avowed objectives, it is imperative that the outside world perceives a visible improvement in Pakistan’s environment for realizing its potential as a regional 'economic hub. Speaking of his recent interaction with the leaders of the Muslim World, the President said the Ummah looked up to Pakistan for playing a leading role in their emancipation. Therefore we must strive for making Pakistan a moderate, progressive and a truly Islamic welfare state as envisioned by the founder of the nation. We have to ensure stability through effective security measures as well as make collective efforts for the promotion of tolerance and harmony in the society.

The Prime Minister said the Government attaches great importance to good

governance in which maintenance of law and provision of security to the common man is accorded top priority. He added that government was committed to sustaining a congenial and friendly environment for both local and foreign investment. Interior Minister Makhdoom Faisal Saleh Hayat presented a detailed briefing about the state of law and order in the country. Governor NWFP Syed Iftikhar Hussain Shah briefed the meeting about the measures taken for maintenance of security in the tribal areas. He also briefed about the pace of development activities undertaken to bring FATA into the mainstream of national life. November 15, 2003

Source: http://www.presidentofpakistan.gov.pk/PRPressReleaseDetail.aspx?nPRPressReleaseId=745&nYear=2003&nMonth=11

Appendix - II

SECURITY, SOLIDARITY AND TERRITORIAL INTEGRITY OF COUNTRY WOULD BE SAFEGUARDED AT ALL COSTS SAYS

PRESIDENT

President General Pervez Musharraf has reiterated that Security; solidarity and territorial integrity of country would be safeguarded at all costs. The President made these remarks while addressing officers of Peshawar Garrison here today. General Pervez Musharraf dwelt at length over a host of issues including Pak-India relations, Pakistan’s role in fight against terrorism with particular reference to the operations conducted by Pakistan Army against foreign terrorists in the Federally Administered Tribal Area (FATA). He said that Islam was a religion of peace and tranquility and there was no room in this divine religion for killing of innocent people on any pretext.

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Lauding the efforts of Pakistan Army for carrying out development works in

FATA, General Pervez Musharraf said that these uplift works had not only redressed the miseries of the underprivileged people of the tribal areas but also brought them to the mainstream of national life. Expressing his complete satisfaction with the state of preparedness of the Pakistan Armed Forces, General Musharraf emphasized upon the need for intensive peacetime training in order to maintain and enhance the qualitative edge over the adversary. He stressed upon the need for greater vigilance and said that on no account we should lower our guards or allow complacency to creep in as it adversely affects efficiency and combat worthiness.

About the prevailing security situation, the President said that by the Grace of Allah Almighty the Armed Forces of Pakistan had withstood every challenge with courage and fortitude. The President said that the policies of the last four years had contributed in strengthening the country’s security, safeguarded vital strategic interests and resulted in the economic turnaround of the country.

The President’s address was followed by a detailed question and answer session.

March 16, 2004

Source:

http://www.presidentofpakistan.gov.pk/PRPressReleaseDetail.aspx?nPRPressReleaseId=453&nYear=2004&nMonth=3

Appendix - III PRESIDENT MUSHARRAF PRESIDES HIGH LEVEL MEETING

REVIEWS FATA SITUATION

President General Pervez Musharraf presided over a high level meeting here on Friday to review the latest situation in FATA. The meeting was attended by Governor NWFP, Lieutenant General (R) Syed Iftikhar Hussain Shah, Vice Chief of Army Staff, General Muhammad Yusaf Khan, Corps Commander Lieutenant General Syed Safdar Hussain and other senior officials. Governor NWFP briefed the participants about ongoing political process in FATA. It was decided at the meeting that Pakistan will not compromise on fight against terrorism and foreign elements hiding in tribal areas have no place, they either have to surrender or will be eliminated. The participants of the meeting were apprised that tribals are law abiding, peace loving and loyal Pakistanis but a handful of those harboring foreign elements will be dealt with severely. President Musharraf hoped that the present political process will bring positive results. He emphasized that socio economic uplift of the area must also continue. May21, 2004

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Appendix - IV PRESIDENT GENERAL PERVEZ MUSHARRAF HAS SAID THAT

PAKISTAN WILL NOT COMPROMISE ON FIGHT AGAINST TERRORISM

President General Pervez Musharraf has said that Pakistan will not compromise on fight against terrorism and foreign element hiding in tribal areas have no place, they will either have to surrender or will be eliminated. He made these remarks during a high level meeting held at Rawalpindi to review the late4s situation in Federally Administered Tribal Areas (TATA) this morning. The President said that the tribes are law abiding, peace loving and loyal Pakistanis but a handful of those harboring foreign elements will be dealt with severely.

He hoped that the present political process will bring positive results. He emphasized that socio-economic uplift of the area must also continue. Earlier Lieutenant General (R) Iftikhar Hussain shah, Governor NWFP and Lieutenant General Safdar Hussain Corps Commander briefed the President about ongoing political process in FATA with particular reference to the recent developments in South Waziristan Agency. May28, 2004


Appendix - V

CONSULTATIONS HELD ON FATA REFORMS

People of FATA are going to make a new beginning in the wake of government decision to bring the areas under the mainstream administration of the federation. Speakers observed this at a two-day consultation on ‘devolution of power and reforms in Fata.

October 1, 2004

Source:

http://www.presidentofpakistan.gov.pk/NewsEventsDetail.aspx?NewsEventID=206

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Chapter - IV

PROPOSED RECOMMENDATION FOR THE REFORMATION OF THE LAWS AND JUSTICE SYSTEM

The process of political change in the Tribal Areas of Pakistan has been very slow. In the last about six decades, only a few political changes have taken place in the region. The most important, of course, being the extension of adult franchise in 1996 and the holding of direct elections to the 12 seats of lower house of the Parliament (National Assembly). This has no doubt brought a significant change in the socio-political life of the tribal people as for the first time the people, including the women, were given the right to directly elect their representatives. This has led to the undermining of the influence of traditional political leadership (Maliks) in the region. The extension of adult franchise to women has also created a new feeling of empowerment among the weak and underprivileged sections of the society. But the people of FATA are still denied some of the fundamental and basic political and legal rights, which are available to citizens of Pakistan in other areas under the Constitution. The political parties are banned in the region. The administrative, political and judicial structure of the areas is based on FCR, which is a legacy of British colonial rule. This is an arbitrary law under which absolute power is vested in the Political Agent. Till 1997 there was no appeal against the punishment awarded under FCR. But the superior courts are still barred from exercising their jurisdiction in the Tribal Areas.

There are three main reasons for the lack of progress in the area of political development in FATA.

First

First, the social system based on tribal loyalties and absolute power of tribal heads (Maliks) over the members of the tribe has remained intact over the centuries. The British perpetuated this system to serve their colonial interests granting special status and cash awards to the Maliks in exchange for duties and responsibilities for maintaining peace and security in the areas. The British had established a chain of military posts in the Tribal Areas to ensure the defence as well as the compliance of the tribal people; and whenever, the tribal people acted in violation of their commitments with the British authorities, military action was taken against them.

Second

Second, the successive governments of Pakistan, instead of establishing direct contact with the people at gross root level, continued to follow the British policy of dealing through the local tribal chiefs i.e., Maliks in the Tribal Areas. After 1947, the Tribal Areas became part of Pakistan. There was hope that the establishment of

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Pakistan would usher in a new era of progress and change in the lives of the tribal people. But these hopes did not come true as the new state continued to follow the policy of the British and took no step to change the status quo. The primary reason was Pakistan’s strained relations with Afghanistan. In view of Afghanistan’s hostile propaganda on the issue of Pashtunistan, the successive governments of Pakistan did not introduce any political change for fear of alienating the powerful and influential Maliks in the Tribal Areas. After the Soviet occupation of Afghanistan in 1979, the support to Afghan resistance against the Soviet occupation became the priority of Pakistan. The tribal Areas continued to suffer from neglect.

Third

Third, due to an attitude of neglect and a deliberate policy of maintaining status quo, the Tribal Areas remained as the most underdeveloped in terms of socio-economic indicators. Although new roads, schools, both for boys and girls, hospitals, and dispensaries were constructed during the last about six decades, the area remained grossly underdeveloped in comparison to the settled districts of the province. Due to lack of progress in the socio-economic fields, the process of political change in the Tribal Areas remained arrested.

But recent events, like fall of Taliban in Afghanistan and the entry of Pakistan army to flush out the alleged foreign militants from South Wazirstan have acted as catalysts for socio-political change in the Tribal Areas. Since April last year about 70,000 Pakistan army troops have been deployed in areas close to border with Afghanistan to apprehend the foreign militants allied with former Taliban and Al Qaeda organizations. This is for the first time in the last 57 years that regular troops of Pakistan army have entered the Tribal Areas of Pakistan. The army action has been followed by a massive programme for the socio-economic uplift of the Tribal Areas through the building of physical and social infrastructure, like roads, water reservoirs, hospitals, schools and telecommunication centers in all the agencies and regions of FATA. The development works in the area is certain to bring changes in the socio-political environment of the region. The federal government has also introduced the tribal version of Devolution Plan in FATA, establishing Agency Councils consisting of elected representatives of the tribal people. At the same time the demand for allowing the political parties to function in FATA is also being raised with rising voice by the Human Rights activists and civil society organizations. After 9.11 the Tribal Areas of Pakistan are witnessing rapid social, economic and political change.

RECOMMENDATIONS

To the Government of Pakistan: 1. Integrate the Federally Administered Tribal Areas (FATA), following extensive consultations with local stakeholders, into Northwest Frontier Province as a Provincially Administered Tribal Area (PATA), under executive control of the

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province and jurisdiction of the regular provincial and national court system and with representation in the provincial legislature. 2. Remove restrictions on political parties in FATA and introduce party-based elections for the provincial and national legislatures. 3. Respect and implement Article 8 of the constitution, which voids any customs inconsistent with constitutionally guaranteed fundamental rights. 4. Re-establish the writ of the state and counter militancy in FATA by: (a) Disarming militants, shutting down terrorist training camps and ending the flow of money and weapons to and recruitment and training by Taliban and other foreign or local militants on Pakistani territory; (b) Prosecuting those responsible for killing civilians and government officials; and (c) Preventing militants from establishing parallel administrative structures, demolishing those that exit and prosecuting those who are delivering private justice. 5. Generate employment in FATA by: (a) Creating manufacturing/industrial units and providing technical assistance, subsidies and other incentives for agricultural activities; (b) Developing the area’s natural resources, including minerals and coal; and (c) Developing human resources by investing in education, including vocational training schools and technical colleges. 6. Open FATA to the media and allow independent human rights monitors to investigate possible human rights violations and abuses by the civil administration or law-enforcement agencies. 7. The Pakistan government should be urged to: (a) Launch special programmes to sensitize the law enforcement personnel on the rights of the people of FATA to ensure that the people of FATA have access to equal treatment and protection of the organs administering justice; (b) Develop technical cooperation programmes with the Office of the High Commissioner for Human Rights for capacity building of the law enforcement personnel on the rights of the people of FATA; (c) Prohibit indiscriminate use of fire-arms and bombs against the civilians while confronting the armed opposition groups; (d) Respond to the suo motu notice issued by the Supreme Court on 1 August 2007 on the rising number of disappearances in Balochistan, establish a judicial commission of inquiry into disappearances in Pakistan by a sitting judge of the Supreme Court and establish accountability for disappearances; (e) Repeal the Frontier Crime Regulation of 1901 from the statute books; and (f) Take effective measures to extend constitutional reforms to the FATA region.

To the Government of Afghanistan:

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1. Work with Pakistan and NATO-ISAF in the military-to-military Tri-Partite Commission to ensure greater coordination in curbing cross border militancy.

To the United States and the European Union: 1. Cooperate with the Pakistan government to take action against pro-Taliban elements in FATA and publish monthly NATO figures of cross-border incursions into Afghanistan to encourage it to do more on its side of the border. 2. Make support for Reconstruction Opportunity Zones in the tribal belt conditional on steps by Pakistan to end Taliban-style parallel administrative and judicial structures and ensure participation of moderate stakeholders in identifying and implementing development projects. 3. Give political and economic support for the process.

Recommendations for the Reformation of the Laws and Justice System

On the basis of mentioned perspective and scenario of FCR, following are the recommendations for the consideration:

1. Constitutionally FATA is an integral part of Pakistan and any law repugnant to

the Constitution should be repealed.

2. FCR in its present shape is in clash with fundamental human rights. Amendments

should be made in the FCR to ensure protection of the rights of the tribal people.

3. FCR should be renamed as FATA Regulation.

4. The legislative and administrative powers of the President of Pakistan under

Article 247 of the Constitution regarding FATA should be transferred to the

Parliament.

5. Amendments should also be made to Article 247 of the Constitution for extending

jurisdiction of the superior judiciary to FATA.

6. Recommendations of the FATA Reforms Committee should be given practical

shape.

7. Judiciary in FATA should be separated from the executive. Separation of

executive, judicial and administrative organs is very necessary.

8. Protection of the rights of women and children should be ensured.

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9. Political reform is a pre-condition to socio-economic development should be done.

10. FATA's taxation system needs to be reformed and overhauled.

11. FCR is based on patriarchal norms and discriminates against women and children.

12. FCR is an impediment to social change in tribal areas.

13. There should be right of association and right to freedom of expression in the

FATA.

14. Collective punishment and territorial responsibilities should be abolished.

15. Investment in arms locks up a large portion of tribal capital and hence

deweaponization is necessary.

16. Lack of modem education infrastructure led to the rise of extremism. So education

structor of FATA should be reinforced.

17. Political Parties Act must be extended to FATA immediately.

18. Local government (elected on adult franchise) plans must be immediately

implemented.

19. Amendments in the FCR to the extent that all obnoxious sections that violate

universal justice or human rights principles are repealed.

20. The role/ functions of Political Agents should be limited to co-ordination.

21. A transparent financial system for FATA must be ensured.

22. Actions under FCR should be subject to challenge in the High Court.

23. PA is using FCR as a weapon and most of his activities lack legality.

24. The tribal system cannot do any further. Therefore tribesmen should make

preparations for the new age.

25. Besides Education, economic developments are also needed.

26. There are competent lawyers and intellectuals among tribesmen; they should be

consulted and taken into confidence

27. FCR may not be totally abolished; its misuse should be checked.

28. Permit system should be abolished.

29. Collective responsibility should be amended and only Turbor and Tawan Sharik (a

person who shares losses with others) may be considered under this clause.

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30. The clause relating to territorial jurisdiction is not a civilized provision because

now no one would be able to make himself accountable for the acts of his brother

even.

31. Demolishing of houses is not a civilized provision.

32. The views of prominent lawyers and intellectuals should be sought while

amending or replacing FCR

33. A credible political system is needed wherein checks and balances are provided,

because

"power corrupts and absolute power corrupts absolutely”.

34. The people of FATA be should be linked through a highway.

35. It is totally incorrect to say that FCR is the only system available and if it is

finished no other system will be found No change occurred in FCR over 103 years

despite the fact that during these 103 years 87 new states emerged on the world

map. No sincere effort made to modify the system.

36. A mass awareness campaign is required in the whole of FATA.

37. . The Senate is considering a bill to amend FCR. Its committee should be

contacted and informed of the views of the tribesmen so that the amendments

reflect their views and enjoy their support.

38. Amendments must be made with the consent of tribesmen and no system must be

imposed on them.

39. The people of FATA should work together with international community and

should not be isolated from the rest of the world.

40. Adult franchise is the foundation of democracy.

41. Army has entered Waziristan; so territorial responsibility should be taken by the

army.

42. Tribal judiciary should be formed.

43. 40 FCR be held against only that person who acts against state and tries to cause

losses to the Army, etc.

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44. FATA is an integral part of Pakistan Article 247 of the 1973 Constitution whereby

the President alone has authority to make orders on the affairs of FATA, should

be amended and Parliament empowered in this behalf.

45. At least the right of appeal to superior court of Pakistan should be granted against

executive orders made under FCR.

The Merger Plan

To justify the merger plan, official sources recall that during the time when the whole of Pakistan was one unit, FATA had representation in the then West Pakistan Assembly. Governor NWFP Khalil-ur-Rehman said that FATA should be merged into NWFP. In this way the development in tribal areas and NWFP will go on equally. He said that such opinion has been sent to the president and the tribal people will be briefed about this plan. FATA is literally a backward and undeveloped area of Pakistan. Because of lawlessness and lack of administration, criminals and terrorists get shelter in FATA. This situation is ongoing and the Pakistani forces have arrested hundreds of terrorists belonging to foreign countries, while various operations in these areas are being carried out to eradicate this evil. Usually people go to Afghanistan from FATA. The illegal crossing of the border is considered infiltration for the purpose of terrorism in Afghanistan. President Pervez Musharraf offered the US to fence the Pak-Afghan border to control this illegal trafficking. In the opinion of the Governor of NWFP, FATA must be merged into NWFP as then the development of this area would be initiated and the law of Pakistan applied on the people of FATA.

• The strengthening of the agency councils in all the tribal agencies and Frontier Regions, reducing the status of the powerful office of Political Agent to the level of District Coordination Officer (DCO) in settled areas.

• The proposals prepared by the tribesmen from the two agencies and Frontier Regions were guaranteeing of basic fundamental rights, economic development and introduction of local government system.

• Similarly, they also called for the separation of executive and judiciary at all levels and establishment of special bench of Peshawar High Court for FATA.

• The recommendations of the establishment of a separate province comprising the existing tribal region as well as representation in NWFP Assembly. The recommendations also include handing over of responsibilities of tribal region from the Presidency to Prime Minister House.

For last sixty years, lets admit this better fact; state has deliberately neglected these areas and exploited them in the name of religion during Afghan jihad. What FATA needs is incorporation into NWFP and representation in provincial assembly based on universal adulthood suffrage. Extending Political Parties Act into FATA is direly needed to balance their views and outlook of life. Absence of any counter-view

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and different ideas has given an ideal atmosphere to dogmatic mullahs to indoctrinate their rigid and puritanical interpretation of religion into the minds of these people. Persistence with old system of political agent, who is the sole arbiter of these areas, has given birth to massively corrupt system. One reason of local tribal people’s support for militant groups is they emancipated them from this corrupt political agent system. To do away with this increasing influence of militant influence and erosion of government’s writ FCR should be abolished altogether and constitution which is the regular law of the land if government is sincere in resolving the issue of FATA. After all people of FATA are as much citizens of Pakistan as people of any other province and not creature of a lesser God

Extension of Adult Franchise to FATA

Despite the introduction of adult franchise, the people of the Tribal Areas do not yet enjoy political and legal rights as equal citizens of Pakistan. Article 25 of the 1973 Constitution declares that all citizens of Pakistan are equal before law; but this article is not applicable to FATA, although under Article 1 of the Constitution FATA is part of the territories of Pakistan. The two elections (1997 and 2002) following the introduction of adult franchise in FATA were held on non-party basis. Despite the persistent demands by the political parties and civil society organizations in the region, the political parties have not been allowed to extend their activities in the Tribal Areas. Under Article 247 of the Constitution, federal government enjoys absolute authority over the Tribal Areas. Under sub-section (7) of the same Article, High Courts and Supreme Court of Pakistan are barred from exercising jurisdiction over FATA. The draconian law known as Frontier Crimes Regulations framed by the British in 1901 to keep the people of Tribal Areas under suppression is still the law of the Tribal Areas. Before 1956, FCR covered the whole of the NWFP; but through an amendment, the settled districts of the province were exempted from FCR. Similarly, FCR was abolished in 1973 in Balochistan. However, the people of FATA are still governed by FCR, which has been denounced by all the political parties as undemocratic, repressive and violation of human rights.

Electoral System

The electoral system is under firm control of political administration and intelligence agencies, which have manipulated the results of poles to ensure success for pro-government candidates. Until the introduction of adult franchise in 1996, an electoral college of 35,500 maliks use to elect candidates for national assembly. FATA has 8 seats in Senate and 12 seats in national assembly. Now coming to the changes recommended by the Cabinet Reforms Committee on Frontier Crimes Regulations (FCR), these changes are aimed at getting rid of sections that violate human rights. The changes include renaming of the FCR as the Federally Administered Tribal Areas (FATA) Regulations, 2008 and the appointment of a judicial officer district and sessions judge – to hear appeals against decisions made by political agents. The

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committee has recommended that a three-member FATA tribunal, which should be headed by a retired judge of high court and consisting of a bureaucrat and a lawyer should be set up and that should have the final appellant authority against the decisions of the judicial officer. Another important proposal of the committee is that the prerogative of a political agent to nominate jirga members should be withdrawn and the stakeholders should be given the right to suggest members of a Jirga for arbitrating a case. The proposed reforms of the FATA Regulations, 2008 is to be presented to Prime Minister Yousaf Raza Gillani after its approval by the committee. The reform will then be sent to President for final approval.

Law & Justice System Reformations

What will FCR be Replaced with?

The newly elected Prime Minister has announced to abolish the Frontier Crimes Regulation (FCR) system, in vogue in Federally Administered tribal Areas since 1901. This has initiated a new dialogue in the country. Although most of the political parties, tribal people and experts see the FCR as a mess of black laws where fundamental rights of the tribal people have been violated over decades yet there have surfaced up some reservations on its abolition or replacement as no one has yet seen any substitute. What will FCR be replaced with? Has the parliament any constitutional or legislative powers to do it? Will president facilitate this move? And will the US let political forces hold control of FATA instead of the president? Will the Maliks, civil and military bureaucracy let it happen? Will tribesmen be ready to accept any police or patwari system instead of their traditional jirga system? What if Taliban and religious extremist factions tried to fill legal void with Shariah system as had resulted in Malakand in case of PATA regulations?

The bottom line concern after abolition of the FCR will be how to deal with Taliban and Islamic militants who will ultimately demand enforcement of Shariah to fill the legal void. The religious parties will also stand beside them in that case. The National Assembly and the Senate members from tribal areas have declared in an informal statement on April 14 that the FCR, if abolished, should be replaced with Shariah system.

A Retrospective Study

The British introduced a set of laws in 1901 called Frontier Crime Regulations to control the frontier province and Balochistan. They had brought most of the sub continent, from Delhi to Attock, under their control since 1900. However they faced strong resistance when they tried to bring NWFP and Balochistan under their dominance. Faqir Epi, Ajab Khan Afridi and Haji Sahib Taranga led the resistance movement in tribal areas. The purpose of enforcement of FCR was to subjugate the tribal areas and Balochistan by any means, fair or unfair. Even before establishment of Pakistan efforts were made to introduce certain reforms in tribal areas of Pakistan.

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During 1919, 1920 and 1935, committees were formed for this purpose but repots of these committees could not create consensus on most of issues. The FCR was suspended in NWFP in 1937 by the then chief minister, Dr Khan Sahib; however it was abolished in urban areas of NWFP and Balochistan in 1956. But the people of Federally Administered Tribal Areas (FATA) remained in grip of the FCR. Articles 246 and 247 in 1973 Constitution introduced two special chapters on FATA which explained the administrative rules and laws for the area. These two articles of the Constitution deal with the tribal areas – both the federally administered as well as the provincially administered tribal areas. The Constitution also states that the parliament cannot legislate for the tribal regions unless the president so directs. The irony is that legislators from FATA can take part in legislation for the whole country but not for their own regions. The power to repeal or introduce any regulation in the tribal regions thus rests with the president. During Benazir Bhutto regime a special committee was formed to report on FCR abolition, and the tribal people for the first time had appreciated its recommendations. The tribal people were granted the right to vote in 1997 under the orders of former president Farooq Leghari, and the first elections in FATA were held in the same year. The interest of the tribal people in the election remained marvelous. There were 1.6 million registered voters in FATA in 1993 and there were 298 contestants for 8 National Assembly seats. During Musharraf regime, another committee headed by Justice (Retd) Ajmal Mian undertook the tedious task to recommend some reforms for tribal areas, especially in FCR, in 2002. The commission worked out some reform recommendations that were also buried in the files. 113

To Abolish or Reform FCR?

Opinion is divided over the FCR and system of administration in FATA, but most analysts agree that FCR should be retained with some amendments, particularly by making it appeal able before a special bench of the High Court. However there are some who advocate the abolition of the FCR.

On the issue of bringing about a change in administrative and judicial system of FATA, we have two schools of thoughts. The one called a semi Islamic–cum traditional school of thought, proposes to introduce a semi Islamic cum–traditional social and legal system, most likely on the pattern of Malakand division of NWFP. This school stands for minor changes in FCR and wants its replacement by Islamic laws, led by religious leaders Qazi Hussain Ahmad and Maulana Fazl ur-Rehman along with some of their like minded tribesmen. The other school of thought, which is called progressive and moderate, stands for a complete social change and is of the view that, tribal children want to adopt civilized life thereby ready to accept life under civilized laws and social set up, so that they may be able to go side by side contributing to modern civilization along with other




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communities both on national and international arena. They need some major reforms not only in FCR but also in entire administrative, judicial and political system.

Abolition of the FCR would need its substitute instantly but neither the federal nor the provincial government has worked on it. Some experts on tribal areas are also advocating that abolishing the FCR can create a legal vacuum and a Malakand-like situation can surface up when following the Supreme Court’s verdict in 1995 that had declared PATA regulation as ultra vires of the Constitution, had led the region to an armed rebellion by Tehreek-e-Nifaz-i-Shariat Muhammadi calling for the enforcement of Shariah to replace the defunct PATA regulation – a problem that continues to haunt the government in Swat. Meanwhile some term the abolition against local tribal traditions. Out of 12 National Assembly members from FATA, eight are in favour of reforming the FCR. Tribal elders and political activists belonging to the PPP, including three recently elected MNAs, forwarded two basic reforms in FCR and judicial system; abolishing the collective responsibility clause from FCR and right to repeal before higher courts. The ANP has developed a complete set of reforms for FATA including constitutional, legal, administrative, political and economic measures. Regarding FCR it states: “FATA is groaning under the colonial inhuman laws in the shape of Frontier Crimes Regulations. It is high time that this notorious law is abolished and replaced by regular laws of the land with some minor adjustments according to the requirements of the socio-cultural conditions of the area. Writ of the higher judiciary of the country should also be extended to FATA so that a proper judicial system is put in place and discrimination against the people of the area comes to an end. The myth of “Peculiarity” of FATA should not hinder the process of reform as the Provincially Administrative Tribal Areas (PATA) is being governed by the province in spite of its different historical development. It also merits mentioning here that the same tribes are being administered by regular provincial administration of Afghanistan on the other side of the line.” 114

The ANP provincial head and former chairman HRCP, Afrasiab Khattak, says there are needed about 80 percent changes in FCR. He stresses upon the need to update the entire tribal system by extension of Political Parties Act to FATA. He further argues that many tribal people, living in Peshawar, Bannu, Hangu, Dir and other parts of the frontier province, are following laws of the country. So “there should be no hindrance in giving tribal people representation in NWFP Assembly.” FATA Grand Alliance, an effective platform comprising of an educated class of the tribal people, also advocates reforms terming FCR a judicial and administrative exploitation of the tribal people. It suggests providing tribal people with a representative tribal council at agency level, which should be independent in its decisions and legislation. A PPP-backed MNA from Bajaur Agency, Akhwanzada Chattan, says it is fundamental right of the tribal people that the FCR is either demolished or reformed. The PPP Khyber Agency head, Waris Khan, however,

114 Ismail Khan, Dawn, March 30, 2008.

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opposes the abolition of FCR viewing the decision against traditions of the areas. Pir Noor ul-Haq Qadri, and MANA-elect from FATA, supports reforms in FCR but says tribal people and their representatives should be taken into confidence before taking any such decision. National Assembly member from Orakzai Agency, Munir Orakzai, argues that abolition of FCR will damage the jirga system where tribal people will be forced to pursue other judicial systems instead of their centuries-old jirga institution. However the recently elected president of Peshawar High Court Bar, Abdul Latif Afridi, opines that only official jirga will see its fate after FCR abolition and not the traditional ‘Olsi Jirga’. The Jamat-e-Islami (JI) says that keeping in view their traditions, the people of FATA wanted to amend the FCR through an elected FATA council. The JI leader, Prof Ibrahim, said at a function at Millat Public School in Ghazi Beg, Mohmand Agency, on April 9 that sections 8, 11 and 40 of the FCR were “horrendous and un-Islamic” and political agents had “extreme” powers under the FCR, as they could for example order the demolition of a house without a court order and could send a tribesman to jail for an indefinite period. Prof Ibrahim said the tribal people were sick and tired of the Pakistani police and court system and wanted the enforcement of Shariah law in the Tribal Areas. He, however, revealed that the government’s decision to abolish the FCR without announcing an alternative legal system in the Federally Administered Tribal Areas (FATA) had created many doubts. Meanwhile JUI-F has also expressed its reservations on abolition of the FCR. Maulana Fazl ur-Rehman says he too was not consulted and warned that any such move would entail grave implications for Pakistan. However it remains an important fact that announcement of the abolition of the Frontier Crimes Regulation without actually knowing what the 1901 British law is going to be replaced with and more importantly what would be its implications has confused the tribal people. But on one thing they are unanimous that there should be reforms in the FCR and in overall tribal administrative, judicial and political system.

Abolishment Some Dreaded Sections of FCR

Some of the draconian provisions in the FCR include seizure/ confiscation of property and arrest/detention of an individual without due process, debarring a person in tribal areas from entering the settled districts (section 21), removing a person from his residence/locality (section 36), fines on community for crimes committed by individuals (sections 22, 23), prohibition on erecting village, walled enclosure and their demolition (sections 31-33), demolition of a house or building on suspicion of being used or populated by thieves or dacoits (section 34), fines on relatives of a criminal and compensation of fines by selling his property (section 56) and no right to go to courts against political agent’s decision (section 60) etc. The most dreaded section is Frontier Crimes Regulation 40, a preventive law pertaining to good conduct that has been grossly misused by the political administration to keep people under detention for longer periods of time than the stipulated three years for peace-keeping it provides for on non-acceptance of sureties by the accused. The other most controversial sections of the law pertain to collective responsibility and territorial responsibility. Section 21 (Collective Responsibility) empowers the

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administration to direct the confiscation of all or any member of a tribe and all or any property belonging to them or anyone of them, if the tribe, or any section or member of such a tribe, are found acting in a hostile manner towards the government or towards people in the country. Section 22 (territorial responsibility) empowers the administration to impose a fine on an entire village if there appear to be good reasons to believe that the inhabitants of the village have connived with, or abetted in the commission of an offence or failed to render assistance in their power to discover the offender or to effect their arrest. The FCR has frequently come under review by the superior judiciary for repugnancy to fundamental rights. In a series of judgments the superior courts have declared various provisions of the law void as being inconsistent with the fundamental rights. Justice A. R. Cornelius in the case of Sumunder v. State (PLD 1954 FC 228) referred to FCR proceedings as “obnoxious” to all recognized modern principles governing the dispensation of justice. He therefore concluded that in the circumstances, it was impossible to preserve public confidence in the justness of the decision made under the FCR. Many FCR sections are contrary to article 8 of the Constitution, which provides that any law or customs or usages having the force of law, in so far as it is inconsistent with the fundamental rights shall be void.

Judicial Reforms

• FCR should be comprehensively amended by taking out all draconian, arbitrary and anti-human provisions from it to provide a civilized law to FATA. To begin with some of the dreaded provisions in FCR particularly section 40 should be abolished immediately and may be replaced with appropriate ordinary law to prevent gap/void in legislation.

• Institutions should be developed and infrastructure put in place i.e. security forces, capable of maintaining peace as well as investigating offenses, would need to be raised. Similarly courts and prisons need to be established and their staff trained.

• The accumulation of executive and judicial functions in single authority should be done away with. The judicial functions at the trial, appeal and revision stages should be exercised by authorities working under the higher courts.

• As a measure of transition the district system established under High Court can utilize local jirgas as jury. This will provide the new judicial system with a semblance of relationship with local customs and traditions.

• The High Court can be made the court of ultimate appeal in cases under FCR. The jirga members should not be selected by the executive, and their findings, on facts of the case, be made binding, except when it is against law, equity or public policy. This transition should aim at ultimately putting in place the normal system of administration of justice in FATA.

• There can be, nonetheless, appointed an Agency Judge in every agency which can also work as an Appellant Court.

• The collective, tribal or regional responsibly should be restricted to a family. Family means the persons who, according to tribal traditions, are partners in

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profit and loss and in good or bad deeds. The arrest of whole tribe should be ended.

• The demolition of houses and buildings should not be allowed. However after a person is convicted, it should be left to discretion of his tribe either they demolish his house or not.

• According to tribal customs if the parties want their case to be decided according to Shariah, the Tehsil or Agency judge can include some religious scholars in the jirga.

• It requires very delicate handling. Changes in the FCR are the need of the hour. But let’s not create a Malakand-like situation in Fata where the state authority has already been challenged by different militant groups.

Administrative and Political Reforms

• The extension of the local government system to FATA should not be delayed anymore. The proposed agency council, which has yet to be operational, falls far short of the very concept of local government since it is neither elected directly through a proper election system nor does it enjoy the powers of a district council. Moreover it totally excludes the participation of women from the entire process.

• The political agents who run these political agencies are in no way accountable to proposed agency councils. They should be made accountable in the suggested local government system. Nonetheless, the afore-mentioned system is quite close to local traditions and people of the area should have no problem in embracing it.

• FATA’s representation in the NWFP Assembly can be another major step towards the area’s integration in the national mainstream. FATA had representation in the provincial assembly of the former West Pakistan that used to sit in Lahore in 1950s but has been excluded from the provincial assembly that sits in Peshawar. By joining the provincial legislature the tribal people would advance towards adopting the culture of taxation since they would have ample representation.

• Extension of Political Parties Order 2002 to FATA will be another milestone for the people of the area who would gradually imbibe modern democratic political culture. Presently the religious political parties have a monopoly over the politics of FATA.

• FATA should not be a no go area for media, political parties, humanitarian organizations and right groups.

• The present duality of the administrative system in FATA has a crippling effect. The federal government administers FATA from above but at the same time almost all the provincial ministers are also functioning in the area. This administrative anomaly should be addressed to improve law and order situation in tribal areas.

• The total exclusion of women from the political process is also unacceptable. In the local bodies elections and general elections women are not allowed by

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jirgas to either become a candidate or vote for a candidate. The political representation of the women should be made secure.

To deal with the phenomena of bringing reforms in the tribal areas, it is quite timely, to set up a national commission on tribal affaires under the president or NWFP chief minister, to work and chalk out a complete plan for a reform package in the federally administrative tribal areas and to merge them with Pakistani society in a peaceful way. So far as the composition of this national commission on tribal affairs, should comprise of, professors, researchers, sociologists. Military strategists, legal experts, journalists, retired civil and military experts on tribal affaires, students, Maliks, politicians, both on national and tribal level. Beside its composition and task, this commission would need a fair time to produce a document to be enforced as a new social contract, which will bring about a complete social change to the tribal society. Now, the ball is in the government court and every one hopeful and waiting that it will announce reconciliatory moves or confidence building measures in FATA, which will lead us to a path of tribal reconciliation and social change, rather to rely on a small parliamentary committee which, practically has got no role under the constitution to play in the affairs of these areas.

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Chapter - IV

Conclusion “Pakistan would not hesitate to go out of the way to give every possible help – financial and otherwise – to build up the life of tribal brethren across the border” — (Quaid-e-Azam’s address to tribal elders in Peshawar in 1948).

60 years have lapsed since then, yet the Quaid’s promise could not be fulfilled by successive governments. To many, the tribal areas look like a home of bullies, outlaws and not-Pakistan-loving people. But the reality is that the tribal areas joined Pakistan of their own free will during partition. They showed their loyalty and love for Pakistan when Pakistan was only one year old. It was the tribal people who marched on Kashmir during the first Pak-India war in 1948 over Kashmir and liberated the existing Azad Jammu and Kashmir.

In spite of their love and sacrifices, Pakistan never tried to integrate them and maintained a “closed door policy” – a heritage of the colonial rulers. The tribal areas on the Pak-Afghan border are still lawless territories and their people are still living in a medieval tribal society, lagging far behind the rest of Pakistan. Moreover, 30 percent of FATA is still inaccessible both politically and administratively. Such a dearth of economic opportunities and deplorable socio-economic indicators can warrant no quality of life. And tribals can easily subscribe to extremist ideas, gun culture and trafficking. Besides, the administrative and political aspects are despondent. The black law of Frontier Crimes Regulations (FCR) that was enacted in 1872 by the British Raj is still in force, where a political agent is a mini-god and wields enormous power. Under FCR, a whole tribe can be punished for the crimes of a single person and can be boycotted economically. Its malik system reflects medieval fiefdoms. On the political front, however, the current government extended general elections to FATA in 2002, but parties were not allowed and people voted for individuals instead of parties that represent ideologies. Despite the presence of popularly elected tribal representatives, parliament can play no role in the affairs of the area. Article 247 of the Constitution provides that no Act of Parliament applies to FATA, unless the president so desires. Only the president is authorized to amend laws and promulgate ordinances for the tribal areas. The presence of 80,000 Pakistani troops in the region is ultra vires of treaties made with the tribal elders. Their presence invites more hostility, especially when they pursue the American war on tribal soil. This condition further alienates them instead of integration. It is time now to assimilate tribal people into the mainstream society and, of course, it cannot be done with the use of force. Pakistan would need a comprehensive and integrated policy formulation to this effect. It would need to take into confidence all the tribal lords and create an environment of trust and confidence. The input of the tribals is a must for determining their future. There is a need for democratic reforms and constitutional amendments with regard to the tribal areas. The Political Parties Act should be extended to the tribal areas so that people could vote for parties, who in turn can take up their problems in

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parliament through the democratic process. The Constitution also needs amendment, where all the powers of the president over the tribal areas should be transferred to parliament. Administrative and judicial reforms should be introduced. The draconian FCR should be abolished and a judicial system introduced that would take into confidence all the tribals too. Extra care should be taken in case of dealing with judicial reforms, keeping in view the traditional Jirga system. Bust most important is the economic uplift of the area. The sector of agriculture shall be given priority where new water resources should be explored and reservoirs constructed. A huge infrastructure of roads should be laid as roads play a pivotal role in the economic development of an area. There is no industry that calls for industrial zones. Such zones, if set up, shall provide employment opportunities and the area would contribute to the economy of the country. To achieve literacy, free education should be given to all tribal people, at least up to the 10th grade. Besides, vocational training centres should be set up to produce skilled labour. Pakistan got independence from the British in 1947, and now it is time for the FATA to get independence from British Laws. General Musharraf has a historical opportunity to suspend FATA’s special status and unify it with the rest of Pakistan. The economic uplift, political, administrative and law reforms and education are the only factors that could end the misery of the tribal people and give them the true status of being Pakistani citizens. It is up to policy makers either to alienate them or to integrate them for a prosperous future of their beloved country Pakistan. While the provincial government brags about its pro-Islam policies and touts them as steps towards an Islamic welfare state, the federal government continues to act out of expedience. If a good number of ordinary people are increasingly hating the US and taking to religion it is not their fault. The onus lies on the ruling elites, and more on the Pashtoon politicians, who love to harp on the issue of socio-economic deprivation but often take the bait of the establishment. Successive government, for instance, have used police and security agencies. That is why more than half of the police, for instance, is deployed on VVIPs routes and venues rather than ensuring law and order. Politicians in the Frontier must also note that in the absence of socio-economic justice – unemployment, low wages, harassment and bottlenecks created by the bureaucratic arms of the government, such as the local administration, police and the helplessness vis-à-vis the judiciary – represent challenges that call for a unified approach by politicians from all shades of life. Political patronage of party affiliates and cronies further aggravates the situation for the common man. And this is a challenge that all Frontier politicians must try to take on together, rather than compromising these issues of vital importance for the sake of party politics. 115

FATA Operations: An Evaluation Varying Perspectives

In order to embarrass the government Pakistan’s Opposition political parties are crying hoarse that these foreigners have been residing here for many years after

115 Federally Administered Tribal Areas of Pakistan By Noor ul Haq, Rashid Ahmad Khan, Maqsudul Hasan Nuri Published by Islamabad Policy Research Institute, 2005 Original from the University of Michigan Digitized 28 Aug 2008 ISBN 9698721126, 9789698721121 90 p.

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having intermarried and settled down. Also, it is justified that that they are not terrorists and hence cannot go back to their countries for fear of being put on trial. They also invoke the contribution of the tribals in the dispatch of lashkars for Kashmir Jihad in 1948. On this rationalization, the government’s response is that before the present operations were launched, the militants were sufficiently pleaded to disarm, surrender or leave the region. In fact, there is no country that would allow its borderlands to be misused as a haven for terrorists, criminals, drug peddlers and extremists. The MMA government has played a negative role in supporting the tribals and encouraging them to stiffen their stand against the government. They have characterised the Pakistani soldiers who lost their lives as “killed,” while their compatriot tribals as “shaheeds.” This is exploitation of religious sentiments of the local people for political ends with a view to create a wedge between the people and the armed forces. Seasoned political analysts like Kunwar Idris are skeptical of the Waziristan military operation and think this will open new feuds, lose government’s credibility and goodwill and retard development in the region.Added to this is the criticism that Musharraf government is doing at the US bidding as pressure builds up on Pakistan to atone for the guilt caused by the nuclear proliferation scandal. Following a policy of “stick and carrot,” the US has designated Pakistan as a New Non-NATO Ally (NNNA), along with some other friendly countries.

However, many observers have appreciated the bold and enlightened policies of Musharraf government in FATA, calling it as a “minor revolution in the making.” While his government has taken a bold decision in opening up the tribal areas it is important that the main battle should be to accomplish the final mission: extirpation of terrorist elements without losing the battle for the “hearts and minds” of the tribal people. In fact, these operations under Musharraf government are different from the previous ones undertaken under the British rule. Then, the tribal areas were attacked, bombarded, and after punitive strikes, the latter chose to withdraw to their military garrisons and cantonments. In retaliation, the tribals would make forays into the settled areas and adjoining cantonments. Now, military operations are being carried out with tacit cooperation of the tribal people and after adequate notices served to them to surrender or register with the state authorities. 116

Needless to say, the tribal regions have not remained static over the last fifty years but have seen the vicissitudes of time. Although their development was arrested, they have seen the fruits of parallel development of settled areas of their Pashtun brethren and have known the value of progress and development. This time, they have volunteered to cooperate with law enforcing agencies to root out terrorists from their area, barring of course, some diehard elements that have taken the path of defiance. Roads, piped water, schools and dispensaries are the crying needs of the tribal people and should they be improved it would make a palpable change in their



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lives. As they cannot afford to remain hermetically sealed from the outside world, the innate urge for reform and uplift their conditions will put pressures on their representatives and ipso facto the Pakistani state. The recent operations have resulted in the death of soldiers and militants and capture of nearly hundreds of suspected militants. However, the “high value targets” have eluded the military operation. The militants were supposedly ensconced in South Waziristan, but with the start of operations they seem to have slipped out and escaped across the borderlands towards Afghanistan. The government assessment of “high value targets” raised undue hopes about the capture of senior Al-Qaeda /Taliban leadership, but this was erroneously based on the “fierce resistance” posed by some diehard elements. Al-Qaeda network, although mauled, has split into autonomous cells that are globally dispersed and could strike at different targets at random as they did in Madrid, Spain in March. For Pakistan, the government cannot afford to let the 600 or so foreign militants remain in the region; hence they have been repeatedly warned to either register or leave the area.

Lapses and Lessons of Wana Operations

Quaid-e-Azam Mohammad Ali Jinnah had resisted pressure for stationing military forces in the region. The tribals had demonstrated loyalty while fighting for the 1948 Kashmir war. Most of them are loyal to Pakistan, notwithstanding the antipathy to the US and sympathies for the defunct Taliban regime. Wazir people should be involved in a dialogue and a public campaign should be mounted that the military operations are not directed against them but only against terrorists, criminals and infiltrators. Besides, efforts must be made to minimize future “collateral damage,” if and when operations are re-launched. Loss of human lives breeds resentment against the army and ipso facto the Federation. The statements of government spokesmen were at times contradictory and lacked credibility; it is the tribal people and their leaders who should have been provided greater opportunity on the media. After all, there is a sizeable section that desires the opening up of these areas and willing to taste the fruits of socio-economic development like the rest of the country. Further, the governmental writ, if strong in the region, will wean away the militants from intimidation from the Taliban elements. In truth, not all foreigners are terrorists and anti-state. The Chechens and Uzbeks who fought during the Afghan Jihad came and settled here and got inter-married. The Arabs are mostly supportive of Al-Qaeda and hence many of them cannot go back to their countries. If they choose to integrate and become law-abiding citizens, they could stay here after due process of registration. However, their movements should be strictly monitored and if there is any infarction they should be immediately extradited to their countries. There is a greater need to co-opt the tribal elders and the political representatives of FATA. Although they bear political affiliations, the government must work in close concert with them and enlist their cooperation by offering them due rewards. Meanwhile, nearly 300,000 Afghan refugees are in FATA whose repatriation is being seriously considered. They form part of nearly 1.5 million still living in Pakistan.

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In the meantime, the government is serious in dealing with the militants till they surrender or are flushed out of the area. Punitive actions against the Zalikhel tribe were taken by their own tribe by burning and demolishing the houses of those who were giving quarter to militants. Huge caches of weapons, communication equipment and documents were also captured. The US-Pakistan nexus remains an unequal relationship. Whereas a superpower, given its evanescent global interests can easily get away, it is the smaller partner that always suffers. Pakistan’s experience has not been very good with the US; this time, it is apprehended that as soon as the US interests diverge, it may call quits. However, most observers think that the war against terrorism is for a long haul, and the US will be forced to remain stationed in the region for the foreseeable future. Nevertheless the presence of a super power breathing down the neck of a small next-door country is an uncomfortable geopolitical existence. The army has to differentiate between a purely anti-insurgency operation and a politically backed operation in the tribal territory. If it is former, it could create alienation against the armed forces. More carrots than sticks are needed in isolating the militants from the tribal people who are by and large peace-abiding people. The last operations, however, raise certain questions: Why laskhars were initially used? Was proper poor surveillance and intelligence gathered? Why were gunship helicopters not used earlier and why exit points were not properly sealed? And, was night equipment provided for the operations to troops? Besides, the troops used were regulars who may be trained to fight in mountainous terrain but not in the tribal regions. The ISPR must educate the public opinion in Pakistan about the military operations. Not much effort was made to brief the press properly and rumors abounded about the motives of military operations. At times, the foreign office and ISPR spoke at cross-purposes. Repeated forays into the tribal areas cannot be made into a regular exercise; the FC militia, which is commanded by regular army officers, could have done the job better as they are from the area and are familiar with the people and terrain. Secondly, efforts should be made to avoid loss of innocent human lives and the services and cooperation of tribal elders be enlisted. Burning, demolition and search and destroy missions create resentment. The practice of demolition of houses a la Israel in Palestinian areas needs to be reviewed and other ways devised to inflict punishment on the miscreants. The government should make the tribal elders responsible for keeping a check on suspects and dilute the status of tribal territories by giving more powers to the local police. Too much energy and money is wasted in catching minor culprits while the big fish manage to escape across the borders. Under the British rule, the Political Agent through his deputy Tehsildar and APO (Assistant Political Officer) served a notice on the tribe in whose jurisdiction the crime took place. A deadline was set; failing which punitive action was taken, including aerial bombardment, artillery fire and use of military forces. The money accruing from penalties was a boon to Governor House and staff.

The kidnapping of Punjab Sports and Culture Minister Mr. Sardar Naeemullah Shahani, who went missing on 10 January 2004 from Miranshah, North Wazirstan Agency, was a serious embarrassment to the federal government. It is indeed paradoxical that more than half of Pakistan (most of Balochistan, the Tribal and

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Northern Areas) should be areas where the national writ continues to be non-existent, and the economy hardly legally linked to the rest of the country. The tribal regions have an open smuggled trade with Afghanistan and are dens of crime, refugees and smugglers. Lately, urban crime and the virus of sectarianism in Pakistan is also linked to these regions. Hence they cannot afford to remain as a “tribal museum.” A sustainable strategy to develop and integrate them into the mainstream is an imperative need. The opening of FATA by Pakistani army and building of roads, schools and hospitals seems a good augury for the region trapped in isolation and under the stranglehold of Maliks, Khans and Sardars. Also, it is hoped that the region with developed infrastructure could open up not only to the rest of Pakistan in its east, but also to the outside world in the west, especially Central Asia through Afghanistan with annual trade which may fetch almost one billion dollars.

Deconstruction of Some Tribal Myths

Most of these tribes are ethnic Pashtuns, although belonging to various tribes, sub-tribes and different clans. Pashtu is a common language shared with the Afghan Pashtuns in the west and Pakistani Pashtuns in the east. Pashtunwali is an unwritten code of honour, hospitality and family vendettas. According to the tribal code, all fugitives from law, even criminals are given refuge if they ask for it. In the late 1990s, Osama bin Laden and his cohorts were offered shelter and it is assumed that till 2004 they were provided shelter in the tribal regions. Pashtuns take immense pride in their ethnicity. The National Awami Party politician Khan A. Wali Khan once said: “I have been a Pashtun for 5,000 years, Muslim for 1,400 years and Pakistani for 40 years.” Pashtuns culture is martial, its folklore of wars and distinguished by dances, which were originally war dances that became a cultural phenomenon. Folklore wisdom says that the tribal regions constituting FATA are locked in isolation and historically impervious to change and progress. Since they have fiercely resisted all invaders since time immemorial without subjugation, they should retain their autonomous status. This is a travesty of historical truth. If foreign invaders did not occupy these regions, there was nothing attractive for them to hold them. The wilderness, harsh climate and lack of resources were hardly any attraction; hence they bypassed or moved to greener pastures. All invaders from the northwest wanted to come to India, then known as land abounding in gold, agriculture and wealth. Besides, change is an immanent human phenomenon and these regions have not been immune from the vagaries of time and regional and international cross currents of change. The Soviet invasion, Afghan jihad, civil war, Taliban rule, refugees, drugs and gun trade, proximity and effects of sub-continental culture and exposure to trade and cultural influences of Pakistan — all have cumulatively exposed the tribal region to forces of transition, albeit the resistance to change is stubborn.

The question worth posing is: should these tribal regions continue to stay as Ilaqa Ghair or a “state within a state?” Must the status quo of the past 57 years linger on? Why the government must remain hesitant in opening up the region and

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extending its sovereign legal writ? Needless to say that it is in Pakistan’s supreme national interest to integrate these regions by purging the area of all kinds of malcontents. That a region should remain outside the writ of the state as Ilqa Ghair for so long is anachronistic. If left, it will poison Pakistan’s relations with China, Russia, CARs, Afghanistan, besides US and India. In 2004, President Islam Karimov of Uzbekistan accused some Uzbek militant groups for March-April killing of 47 people in Tashkent and Bokhara who belonged to Islamic Movement of Uzbekistan (IMU), renamed Islamic Movement of Turkestan (IMT). He averred that these Islamic militants had international links and had sought refuge in South Waziristan with ties to the locals. The MMA, now holding power in the two border provinces of NWFP and Balochistan, has not been able to deliver and has instead been playing on chauvinist and religious cards for political expediency. ARD and PML-N are following the same bait. PPP seems non-committal but has tilt towards the MMA elements. The MQM leader, Altaf Hussain is critical of all religious parties, including PML-N and PPP for strengthening the Taliban forces during their terms of office. Unfortunately, the erstwhile noble traditions of tribal hospitality and honour stand greatly perverted, isolating the FATA and bringing it into the spotlight as an “epicenter of terrorism.” In a world of ferment, governments do not run on tribal traditions and customs alone. If the people of FATA are hospitable, they should not allow these elements to indulge in acts of terrorism and criminality from their soil. For, they have become a burden and a problem not only for their own people but also for Pakistan and the region. Hospitality demands sacrifice, humanitarianism, donations and helping others to build the war-battered Afghanistan, especially where their co-ethnics live.

The term “fiercely independent” is another red herring. This is to overestimate their strength, indulge in historical determinism and using it as an alibi to shirk national responsibilities. Historically, all tribal peoples of all regions and climes have had common features of independence, honour and vendettas, whether in Africa, Latin America or Central Asia. The same could be said of the Central Asian Basmachis when they defied the Czarist armies. Yet they were overpowered, tamed and civilized with the forces of education, development and employment of discrete military force. “Fierce independence” is not tantamount to killing, terrorism, blackmailing for money, ransom and drugs. Where state interests warrant, the use of selective force may be needed. In fact, during the American civil, war when the Southern Confederates rose in revolt to separate in order to protect slavery, the state power under Abraham Lincoln was used to maintain the Union and bring them into the mainstream. Retrospectively, this was a wise decision. Here it might be pertinent to make a quick comparison with India when it was able to successfully deal with its troubled tribal regions in the northeast: Mizoram, Assam and Nagaland. While it did face protracted conflict and separatist movements, it engaged these regions politically and economically after independence through a policy of retribution and reward. Sometimes granting autonomy defused the situation while on other occasions the carving out of a separate state from the larger unit mollified the militants. Indian democracy with its resiliency enabled the leaders to take bold measures by creating

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new states of Uttarkhand, Bundelkhand and Gorkhaland without weakening the Indian Union. This policy steered them into national mainstream, albeit problems of Indian Union still remain. On the contrary, Pakistan continued to remain blissful and naïve about its tribal regions, riveting its attention on its eastern border and Kashmir dispute. In line with colonial British policy, it thought that its western borders would act as a “security cordon” or confer it much needed “strategic depth.”

The upshot was that Pakistan had allowed itself to become a “soft” and “penetrated state” where aliens of all stripes and colour could enter at will, seek refuge and indulge in unlawful activities. As an example, some Arabs had settled down in tribal areas since many years and intermarried with local population. Others came after 9/11 for refuge and to escape the US-Afghan forces. After the March 2004 operations, most of them have managed to send their families back through local agents after payment. But some foreign fighters allied with the Taliban and Al-Qaeda viz., Chechnyans, Chinese, Tajiks and Uzbels decided to stay back as local tribes sheltered them for financial remuneration. Also, they were hesitant to go back for fear of reprisals from their home governments for committing acts of terrorism on home soil. Interestingly, some of the Arab fighters, were generally well off and had sources of funding and preferred to move into the urban centers of Karachi, Lahore, Faisalabad and other cities to escape detection while from Central Asia stayed back for want of adequate resources. This puts paid to the theory that it is only traditional hospitality or generosity was motivating the locals. In fact, tribal sympathy as ex-Jihadis and monetary considerations worked in tandem — with the latter motive often paramount. After all, the ousted Taliban regime was beholden to an outsider, Osama bin Laden and his economic largesse. This led to its international ostracism. Some observers invoke the argument that it was the US, which first initiated Jihad against then Soviet Union and backed out after accomplishing its mission. It was therefore culpable by turning its back. This is factually correct but equally had Pakistani complicity under General Zia’s Jihadist manifesto. Needless to say that it not unusual for big powers to pursue their global interests and strategies. Besides, in any “patron-client” relationship, it is the patron who calls the shots and can switch relations in its global schema. To expect it to act otherwise is both infantile and wishful way of thinking.

Violent Jihad, in fact, today has become a global business duly backed with high finances and devoid of any spiritual-ethical dimensions. It hardly needs a fine eye to differentiate bomb blasts, murders, suicides, killings, kidnapping, use of drugs and violence and high-sounding slogans for Jihad. Unfortunately, the exclusivity, remoteness and neglect of the tribal areas have taken their heavy toll. “To deny people civil and political rights by saying that this is a “tribal way” of life is convenient, but it does not pay in the long run, says a political analyst. It is important that the region should be renamed from appellations of “Ilaqa Ghair,” “tribal belt,” “unsettled areas” or even FATA. The litmus test of Pakistan state’s sovereignty lies in bringing them into the ambit of its legal jurisdiction and law as soon as possible or risk negative repercussions. If Pakistani troops do not take action,

122

the NATO troops could move in, cautioned Imtiaz Alam. This was also implicit in the direct threat made by Zalmay Khalilzad, the US envoy to Afghanistan when he said: “we have told the Pakistani leadership that either they must solve this problem or we will have to do it ourselves.” He added: “we prefer that Pakistan takes responsibility and the Pakistan government agrees. However, one way or the other, the problem will have to be dealt with.”

Case Laws

1 - Toti Khan v District Magistrate Sibbi and Ziarat (PLD 1957 Quetta 1)

The Balochistan High Court, in Toti Khan V District Magistrate Sibbi and Ziarat termed the FCR repugnant to article 5 and void under article 4 of the Constitution of Pakistan.

2 - Abdul Rauf v Government of NWFP (PLD 1959 Peshawar 236)

The Peshawar High Court, in Abdul Rauf v Government of NWFP, made a similar judgment and termed it void under article 4 of the Constitution.

3 - Muhammad Ishaque Khosti v Government of Balochistan (1959)

In Muhammad Ishaque Khosti v Government of Balochistan, the Quetta bench of the Federal Shariat [Islamic] Court declared the FCR un-Islamic and recommended its repeal. Despite these categorical judgments by the superior judiciary against the FCR, it still remains a decisive law in the administration of justice for a population of approximately 7 million.

4 - Sumunder vs State (PLD 1954 FC 228)

Justice A. R. Cornelius referred to FCR proceedings as "obnoxious to all recognised modern principles governing the dispensation of justice" in the case of Sumunder vs State (PLD 1954 FC 228).

5 - State vs Dosso (PLD 1958 SC 533)

6 - Abdul Akbar Khan vs DM Peshawar (PLD 1957 Peshawar100)

7 - Abdul Baqi vs Superintendent, Central Prisons, Machh (PLD 1957 Karachi 694)

8 - Khair Muhammad Khan vs Government of WP (PLD 1956 Lahore 668)

9 - Malik Muhammad Usman vs State (PLD 1965 Lahore 229).

Cases tried in Khyber Agency The following figures are related to civil and criminal cases tried in the Khyber Agency.

Criminal cases 1970---6; 1971---10; 1972---8; 1973---7; 1974---8; 1975---6; 1976---7; 1977---6; 1978---7; 1979---7; 1980---6; 1981---7; 1982---3; 1983---1; 1984---7; 1985---4; 1986---1; 1987---10; 1988---10; 1989---1; 1990---14; 1991---3; 1992---10; 1993---2; 1994---8; 1995---4; 1996---6; 1997---6.

Civil cases 1970---65; 1971---33; 1972---72; 1973---46; 1974---26; 1975---29; 1976---0; 1977----0; 1978---32; 1979---0; 1980---0; 1981---2; 1982---2; 1983---0; 1984---1; 1985---1; 1986---1; 1987---2; 1988---2; 1989---0; 1990---0; 1991---1.

Cases registered before the FCR Tribunal

• Total cases Registered in 2003 --- 152; cases decided= 122

• Kurram Agency; Civil = 56; Criminal = 11.

• Bajaur Agency; Civil = 15; Criminal = 6

• Khyber Agency; Civil = 2; Criminal = 4.

• Momand Agency; Civil = 6; Criminal = 2.

• Orakzai Agency; Civil = 2; Criminal = 4.

• North Waziristan; Civil = 5; Criminal = 8.

• South Waziristan; Civil = 2; Criminal = 4.

• FR Kohat; Civil = 4; Criminal = 2.

• FR Bannu; Civil = 2; Criminal = 3.

• FR DI Khan; Civil = 3; Criminal = 2.

Total cases registered in 2007 = 208; cases decided --91

• Kurram Agency; Civil = 73;Criminal = 31;

• Khyber Agency ; Civil = 7; Criminal = 17;

• Bajaur Agency; Civil = 25;Criminal = 6;

• Momand Agency; Civil = 2; Criminal = 1;

• Orakzai Agency; Civil -1, Criminal –5;

• North Waziristan; Civil 2, Criminal 15-

• South Waziristan Agency; Civil Nil, Criminal 7;

• FR Peshawar; Civil Nil, Criminal 3;

• FR Bannu; Civil Nil, Criminal 2;

• FR DI Khan; Civil Nil, Criminal 1;

• FR Kohat; Civil 8, Criminal 2.

There are three types of criminal cases-- murder, car lifting and kidnapping. The murder cases are fewer than car- lifting and kidnapping cases. There are two kinds of civil cases, i.e. property and money disputes. Most of the money cases are related to illegal transactions like drugs, etc.

Bibliography

I am extremely thankful to the staff and administration of the following libraries;

• Lahore High Court Library

• Peshawar High Court Library

• University of South Asia Library

• Quaid-e-Azam Library

• Punjab Public Library

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• Agreement between Amir Abdur Rahman Khan of Afghanistan and Sir Henry Mortimer Durand, British Secretary to the Government of India regarding the demarcation of the Indo-

Afghan Frontier, 12 November 1893. See Mehrunnisa Ali, Pak-Afghan Discord: A Historical Perspective (Documents 1855-1979) (Karachi: Pakistan Study Centre, University of Karachi), 1990, pp. 55-57.

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• After the establishment of Pakistan three agencies – Bajaur, Mohmand and Orakzai – were created whereas Gilgit and Malakand agencies were eliminated.

• The fifth was Gilgit Agency established in 1889 and the sixth Mohmand Agency was added by Pakistan after 1947.

• I.J.P.P. 1901, vol .579, Reg. No. 1815, India Office’s Comment on the Frontier-Crimes Regulation, 1901, cited in Lal Baha, p.30.

• A.H. Dani, A Short History of Pakistan Book One Pre-Muslim Period (Karachi: University of Karachi), 1967, pp. 100-101.

• Sir Olaf Caroe, Governor N.W.F.P. to Viceroy Lord Wavell, reproduced in Syed Abdul Quddus, The North-West Frontier of Pakistan (Karachi: Royal Book Company), 1990, pp. 333-334.

• Attlee to Mountbatten, 18 March 1947, Mountbatten Papers, IOR: MSS. Eur. F.200/16.

• Brigadier B.P.T.O’ Brien, Director of Intelligence, G.H.Q. India, appreciation, 28 April, 1947, IOR: L/WS/1/1010; and Noor ul Haq, Making of Pakistan: Military Perspective (Islamabad: National Institute of Historical and Cultural Research) 1993, p. 153.

• T.H. Thornton, Sir Robert Sandeman (London: 1895), pp.358-9, memorandum dated 27 September 1890 cited in Alan Warren, Waziristan, the Faqir of Ipi, and the Indian Army (Karachi:Oxford University Press), p. xxiv.

• Tribal Disturbances in Waziristan, op.cit., p.7.

• Davies, C C, The Problem of North West Frontier: 1890-1908, (Cambridge, 1932), p. 37 Cited in Shah, Islam Syed, Ph D Thesis (unpublished)

• Indian Independence Act, 1947, Chapter 30, Section 7 (1), C

• Government of Pakistan, Revised Agreements with the Tribal People, Peshawar, 1947, cited in Shah, op. cit, p. 70

• Gazette of Pakistan, Extraordinary, dated 27th June, 1950, pp. 511-512

• For specimen of Revised Agreement with the Tribal People, 1951-52.

• Article 246 of the 1973 Constitution of Islamic republic of Pakistan.

• Article 247 of the 1973 Constitution of Pakistan

• Government of Pakistan, 1998 Census Report of FATA, Census Publication No. 152, (Islamabad: Population Census Organization, Statistics Division, March 2001), p. 1

• Qazi Isa’s letter to Prime Minister Liaqat Ali Khan, dated 10 January 1950. File No. 8 (2) PMS/50.

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• Khan, Azmat Hayat, The Durand Line; its geo-strategic importance (Peshawar, Area Study Centre, University of Peshawar, 2000), p. 185

• Dawn (Karachi), 15 July 1949. Cited in Burke, op. cit., p. 74

• The Pakistan Times, (Rawalpindi), 19 December 1969.

• Dawn, (Karachi), 13 October 1972.

• Government of Pakistan, Budgetary Allocations: 1972-73 Budget (Islamabad: Finance Division, 1972), pp. 137-178.

• The Pakistan Times (Rawalpindi), 9 August 1974.

• Daily Nawa-e-Waqt (Rawalpind), 21 July 1973.

• Hayat (Lahore), 15 October 1977, quoting from The Kabul Times, n. d.

• Khan, Azmat Hayat, op. cit., p.p.193-4

• Hasan Khan, “Not gone are the days,” The News on Sunday, International,

• Rawalpindi-Islamabad, 14 March 2004, p. 25.

• For details on topography, economy and cultural traits see <http://78.191encycolopaedia.org/W/WA/WAZIRISTAN.htm> retrieved on 15 January 2004.

• Aslam Effendi, “Civilising Waziristan,” The News, International Rawalpindi-Islamabad, 9 April 2004, p. 7.

• Howell, 1979, cited in ibid.

• Behroz Khan, “20 arrested in Wana operation, ” The News, 25 February 2004,

• Behroz Khan, “Libyan hatched plot to kill Musharraf,” The News, 16 March 2004,

• “More terrorists hiding in tribal belt”, The News, February 28, 2004, p. 1, 8.

• Iqbal Khattak, “Tribal army to hunt militants,” Daily Times, March 8, 2004, p. 1.

• “Govt seeks surrender of wanted tribesmen,” The News, 10 March 2004, p. 9.

• “Pakistan fails to act against Taliban: US,” The News, 11 March 2004, p. 1.

• Joseph Siegle, “US can’t avoid democracy in Pakistan,” Daily Times, Islamabad, 17 February 2004, p. A6.

• Rahimullah Yusufzai, “Tehran radio triggers debate on Osama fate,” The News on Sunday, 29 February 2004, p.1,8.

• Stephen P. Cohen, “US. handles Pakistan pardon with kid gloves, “ Los Angeles Times, 7 February 2004.

• “Rocca for deepening Pak-US ties to mutual benefit,” The News on Sunday, 29 Feb 2004, p. 9.

• Nadeem Malik, “Washington outlines $701m aid package,” The News, April 30, 2004, p. 1. This includes $300 million for Foreign Military Financing (FMF); $2 million for International Military Education / Training; $40 million for International Narcotic Control /Law Enforcement; $6 million for NADR (Anti Terror); and $ one million for NADR (Export Control /Border Security).

• Khalid Hasan, “US praises Pakistan’s anti-terror efforts,” Daily Times, 30 April 2004, p. A12.

• “Gen Aurakzai says army opened up all of FATA,” The News, 16 March 2004, p. 10.

• “Musharraf for promotion of education, agriculture in FATA,” The News, 16 March 2004, p. 10.

• Bureau report, “Govt to deal with foreign element effectively,” The News, 19 April 2004, p. 11.

• “Army completes road linking Khyber agency to Mohmand agency,” Daily Times, 21 Feb 2004, p. A4.

• President Musharraf‘s address to tribal elders in Peshawar as reported in The News, 16 March 2004, p. 9.

• “Forest dept launches social forestry in FATA,” The News, 11 March 2004, p. 11.

• “Nine NGOs agree to work for FATA development,” The News, April 19, 2004, p. 10.

• “Not gone are the days,” The News on Sunday, 14 March 2004, p. 25.

• “Army militants embrace peace,” The News on Sunday, 25 April 2004, p. 8.

• Dawn, Karachi, 29 February 2004, p. 4.

• “Government, opposition clash in NA on Wana,” The News, 19 March 2004, p.1.

• Kunwar Idris, former Chief Secretary Sindh government, “Campaigning against terrorists,” Dawn, 21 March 2004, p. 6.

• The other countries are Egypt, Jordan, Indonesia and Australia.

• Hafizur Rahman, “Dealing with tribesmen,” The News, 20 March 2004, p.6.

• Kamal Matinudddin, “Status of foreigners in the tribal areas, ” The News, 8 May 2004, p. 6.

• Statement of Minister of Interior, Daily Times, 26 March 2004, p. A2.

• Rahimullah Yusufzai, “Time to rethink military operation in FATA,” The News, 25 Feb 2004, p.1, 9.

• Editorial, “Time to settle tribal areas,” Daily Times, 1 March 2004, p. A6.

• Governor of NWFP as cited in Bureau report, “Pakistan enjoys warm relations with ASEAN countries, says Iftikhar,” The News, 30 April 2004, p.10.

• As cited in Daily Times, 20 March 2004, p.10.

• “Pak-Afghan borders haven for Uzbek militants: Karimov,” The News, 30 April 2004, p.12.

• Mir Jamilur Rahman, “The Waziristan operation,” The News, 28 February 2004, p.6.

• “Altaf Hussain speaks on Wana: A few pressing realities and questions,” The News, 30 March 2004, p.6.

• Maqsud U. Nuri, “The FATA conundrum, ”The News, 19 April 2004, p. 6.

• “Shakai next target for military operation,” Daily Times, 4 April 2004, p. A11.

• Samina Ahmad, Director, International Crisis Group in Islamabad as cited in “Pakistan under pressure to tame its wild west,” The News, 10 April 2004, p.10.

• “Next move in FATA,” editorial, The News, 10 April 2004, p.6.

• Imtiaz Alam,“Wana operation and the opposition,” The News, 29 March 2004, p.7.

• Quoted in Kaleem Omar, “Zalmay Khalilzad,’s long history of somersaults,” The News, Business and Political Economy, April 11, 2004, p. 5.

• On the possible reasons for the diplomat’s remarks see Pervaiz Iqbal Cheema, “Irresponsible or undiplomatic utterances,” The News on Sunday, 25 April 2004, p.7.

• Donald Rumsfield and General Peter Pace cited in “US lauds Pak cooperation against terrorism,” The News on Sunday, 25 April 2004, p. 12.

• Ismail Khan’s interview with Azam Khan, the Political Agent of South Waziristan, “There can be no quick -fix solution,” as reported in Dawn, Magazine Section, Karachi, 4 April 2004, p.1.

• “The US is overtly trying to divide Afghanistan along Pakhtun and non-Pakhtun lines and is covertly trying for fragmentation of Pakistan, “US trying to divide Afghanistan: claims scholar,” Dawn, 9 November 2002.

• Fakh-ur-Rahman, “Plan to Divide Afghanistan,” The Frontier Post, Peshawar, 1November 2001.

• Maqsud U. Nuri, “FATA: Quo Vadis?,” The News, 5 May 2004, p. 6.

• http://www.thepersecution.org/nr/2006/y2006.html#1

• State of Human Rights in 2006, Human Rights Commission of Pakistan

• Temple demolished, says Pakistan council, Times of India, 17 June 2006, http://timesofindia.indiatimes.com/articleshow/1655965.cms

• No construction on temple site: Pak court, Times of India, 18 June 2006, http://timesofindia.indiatimes.com/articleshow/1656554.cms

• Communication from National Commission for Justice and Peace Pakistan, 7 February2007

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