SPECIAL STATUS OF FATA: ILLEGAL BECOMING LICIT

Prof. Dr. Sarfraz Khan*

Aims and Objectives

This paper briefly introduces Federally Administered Tribal Area, FATA, its land, people, culture, system of political administration and special constitutional status. It argues that in the North Western borderland of former British India (currently, Pakistan), a region with a ‘so called’ special status was created by the British to protect and promote its imperial holdings in the area and beyond. The successor state, Pakistan, has been sustaining and reinforcing this special status of the region for domestic as well as external purposes.

The special status, on surface, appears to be granting concessions, privileges and autonomy to the tribes. In reality, it has been mostly fulfilling the interests of the powerful domestic establishment and its more powerful international allies. It has been instrumental in keeping tribal people underdeveloped and deprived of fundamental human rights. It also sanctions illegal practices (trade in smuggled goods, drugs, arms, provision of arms, training and sanctuary to alien militants), declaring them licit, in the name of tribal/religious customs and traditions.

Introduction

Land and People of FATA

Federally Administered Tribal Areas (FATA) of Pakistan refers to the North Western Borderland of Pakistan. It is a narrow belt stretching along the PAK-Afghan border, popularly known as the Durand Line, named after Sir Mortimor Durand, who surveyed and established this borderline between Afghanistan and British India in 1890-1894. FATA accounts for 27220 Sq Kms or 3.4% of Pakistan's land area, comprising seven Agencies namely: Kurram, Khyber, North Waziristan, South Waziristan, Bajaur, Mohmand, and Orakzai along-with six Frontier Regions(FRs): FR-Peshawar, FR-Kohat, FR.Bannu, FR.Lakki, FR. D.I.Khan, and FR.Tank. All tribal agencies have a common and contiguous border with Afghanistan, except Orakzai Agency.1 According to the 1998 census the population of FATA was 3.138 million or 2.4% of Pakistan's total population, currently estimated approximately 3.5 million. Various Pukhtun Muslim tribes inhibit FATA. A small number of religious minorities, Hindus and Sikhs, also inhibit some of the tribal agencies.

Land Tenure and Classification: Amongst Pukhtun tribes traditional land distribution known as wesh was carried out by Shaikh Mali around 1530 AD. It proceededin a hierarchy based on tribal organisation:  First the tribe or Quom which had occupied a territory, then, clan since tribe comprised various clans or Khel, to sub-clans (tapa), to kandae and to plareena (plural of father) to plar. Plar in Pukhtu means father, many families having a common ancestor are known as plareena/Bajar. In Shaikh Mali’s land distribution, land owner Pukhtun tribesmen were known as davter, there were also some land given to kasabgar (rendering services such as barbar, washman, cobbler etc.) and clerics, known as tserai, in return for their services to the tribes. Davter land was hereditary, while tserai was conditional to the continuation of services to the tribe. There are still some collective lands (Shamilat) of the clans and sub-clans, which are at times, the source of dispute between tribes or clans.

Kurram is the only Agency of FATA that has land settlement and revenue record. The first land settlement in Kurram was carried out in 1905. Another settlement took place in 1943-44. The prevailing land settlement is of 1943-44. In Khyber and other agencies land record is oral, but well known in the area.
Classification of Areas
Formal / Informal

Classification                 Significance
Settled                          Revenue Land Administration
Unsettled

Protected                       Legal Administrative
Unprotected

Accessible                     Physical
Inaccessible

Special Areas                 Pre-Independence Classification for FATA

Merged Areas                Mostly Present PATA

Administered Areas                    Settled Area
Un-administered Areas                Unsettled Areas
                                                Protected Or
                                                Unprotected
Tribal Agencies of FATA:
i)    Khyber Agency is located at 33-45 and 34-20 degree North latitudes and 70-27 and 71-32 East Longitudes. It is bordered by the Kabul River and Koh-e-Suffaid range in the North, Peshawar District in the East and Kurram Agency in the West. In the North-West lies Afghanistan, Orakzai in the South and Mohmand Agency in the North-East. The total area of the Agency is 2,576 Sq. Kilometers. Khyber Pass (40 km long) is situated at a height of 3870 feet. This Pass begins a little distance ahead of Jamrud, from Shadibaghiar and ends near landi Kotal. The Khyber Pass is the great northern route from Afghanistan into India while the Kurram and Gomal Passes form intermediate communications, and the Bolan Pass, is the great southern passage. Principal streams that drain through the Agency are Bara River, Choora River and Khyber ‘Nullah’, all flow into the Peshawar Valley. The Agency generally comprises a barren and rugged mountains terrain, some very beautiful Valleys with plain cultivable lands. The important Valleys are Rajgal, Maidan, Bara and Bazar. The Valleys lying near the sources of Bara River are generally known as Tirah. Rajgal Stream from Rajgal Valley and Shalobar Toi from Maidan Valley join up at Dwa-Toi, and thereafter it is called as Bara Valley.
Afridi (Adamkhel, Akakhel, Kamarkhel, Kamberkhel, Kukikhel, Malik Dinkhel, Sipah, Zakhakhel), Shinwari (Ali Sherkhel), Mullagori (Ahmadkhel, Ismailkhel) and Shilmani (Shamsherkhel, Haleemzai, Kam Shilmani) tribes have been residing in Khyber. 2 The population of the agency is 0.547 million.3

ii)   Kurram Agency was formed in 1892, Afghanistan in the North and West, Kohat in the South East, North Waziristan in the South and Khyber and Orakzai Agencies in the East bound it. In the North, steep Koh Sufaid (White Mountain) forms boundary of the North Western Tehsil, Upper Kurram. River passes through both Upper and Lower Kurram. The Agency spreads over 3380 sq: km area, two major tribes Turi and Bangash alongwith Sayed, Zaimusht, Mangal, Muqbil, Ali Sherzai, Massuzai, Para Chamkani reside the territory. Both Shia and Sunni communities, majority of the former in Upper Kurram while majority of later in Lower Kurram and Central Kurram, reside in Kurram Agency. The population of the agency is 0.492 million.4

iii) Bajaur Agency adjoins Malakand Agency on the Southeast, Dir District on the Northeast, Mohmand Agency on the Southwest and Afghanistan on the Northwest with a total area of 1290 sq. km. It comprises, largely linked, two valleys Nawagai and Barang, encircled by high mountains, ranging up to 3000 meters. Bajaur was granted the status of Agency on Ist December 1973. Earlier, till1960, Bajaur had been semi-independent similar to the State of Dir and Swat, falling under political jurisdiction of the Political Agent, Malakand. In 1960, Bajuar was declared a Sub-Division of the then Malakand Agency, and an Asstant Political Agent with headquarters at Munda (Dir District) was appointed to look after the political affairs. Bajaur Agency is divided into Seven Tehsils, Barang, Nawagai, Khar, Mamund, Salarzai, Utmankhel & Chamarkand. The dominant tribe of Bajaur Agency is the Salarzai branch of the Tarkalanri tribe which is divided into different clans. The ruling family of Ibrahim Khel and Bram Khel (Khan Khel) belongs to the Salarzai tribe. Most of the land in Khar, Jar, Raghagan, Losi Sum, Pashat and Babukara areas still belongs to these Khans. A number of springs and streams of sweet water flow throughout the Agency providing clean drinking and irrigation water. The major river Rud, actually a mountain stream, passes through Khar (agency headquarter) and Nawagai valleys. Springs of Valley Pashat are significant and provide clean and sweet water for drinking and recreation. The total cultivated area is 74121 hectares while uncultivated area is 54914 hectares. Land under irrigation is 19524 hectares and unirrigated area is 54597 hectares. 30175 acres area is also under forest in the Agency. Bajaur today is different from the past when the whole tribe acknowledged allegiance to one ruling family of whom Safdar Khan, the Khan of Nawagai is the lineal descendant. Owing to the dissension in the tribe, the power of the former ruling chief has in the course of time diminished. The population of the agency is 0.595 million.5

iv) Mohmand Agency contiguous to the Charsadda plain, borders in the North Bajaur Agency, in the East Malakand and Peshawar Districts, in the South Khyber Agency and Afghanistan in the West was formed in 1951. Earlier this area was under administrative control of Political Agent Khyber. The Agency Head Quarter is located in Ghalanai. Mohmand Agency lays 54 km north of Peshawar and shares 68 km border with Afghanistan. River Kabul forms a natural boundary between Mohmand and Khyber Agencies. The drainage system comprises three basins, i.e. Swat, Gandhav Khawarh and Kabul, all draining toward Charsadda plain. The total area of the Agency is 2296 sq. km. and population around 0.4 million. Musakhel, Tarakzai, Safi, Uthmankhel, Haleemzai inhabit Mohmand numbering 0.334 million. 6  

v)   Orakzai Agency, previously a part of FR Kohat under the Political Administration of Deputy Commissioner, Kohat, was established in December 1973. It is the second smallest and sole agency not having direct border with Afghanistan. The total area of the Agency is 1538 sq. km. Kurram Agency in the West, Khyber agency in the North, District Kohat on the South and Peshawar in the East bound Orakzai Agency. Its territory comprises a mountainous tract, dissected by numerous dry watercourses. The two major streams are the Mastura and Khanki Toi, both originating from the hills in the West and run to the East. Aurakzai and Daulatzai tribes inhabit Orakzai Agency numbering 0.225 million.7

vi) South Waziristan Agency the largest in FATA, with an area of 6620 sq. km. was declared an Agency in 1885. North Waziristan Agency and D. I. Khan bound it in the North and East respectively, while Balochistan lies to the South and Afghanistan to the West of the Agency. The area comprises rugged rocky terrain with several peaks over 8000 feet. Arable land is in short supply; hence, narrow valleys are intensively farmed. The major rivers are Gomal, Shahur and Tank Zam. The major plains are Wana, Zarmilan, Spin and Barwan plains, of which Wana is the richest in ground and surface water potential. South Waziristan is inhibited by two major tribes, Mahsud 57%, Wazir 35%, and Dottani/ Suleman Khels 08%. The population of the agency is 0.430 million.8

vii)       North Waziristan Agency was constituted in 1910, with its Head Quarter at Miranshah. Kurram agency and Kohat on the North, Kohat and Bannu on the East, South Waziristan on the South and Afghanistan on the West, bound it. Total area is 4707 sq. km., Dawar (Upper Daur. Lower Daur), Wazir (Tori Khel, Mamit Khel, Kabul Khel, Madda Khel, Manzar Khel, Bakka Khel, Jani Khel ) and Saidgi and Gurbaz reside in the agency. The two largest towns are Wana and Kanigurum. The population of the agency is 0.46 million.9

Frontier Regions (F Rs) of FATA:
FR Bannu is inhabited by Ahmadzai and Uthmanzai its population is 0.020 million.10 FR Bannu touches North & South Waziristan, Karak District and Bannu. Almost all the land is dry and semi-mountainous. 11 FR Bannu is administered through a separate Assistant Political Agent under the administrative control of the Deputy Commissioner, Bannu. The total area of the FR is 877 sq. kms. Important valleys are Barganatu Khawar, Tangaro and Tochi river.

FR. D. I. Khan is resided by Shiranis and Ustrana, its population is 0.039 million, but another source reports a figure of 28990 persons.12   The total area of the FR, D. I. Khan is 3229 sq. km13 2008 sq. km.14 Takht-i-Suleman is the important hill of the area. It touches Dera Ghazi Khan, South Waziristan Agency and settled area of D.I. Khan and West Zhob.15 FR DI Khan is administered by Deputy Commissioner, D.I.Khan.

FR Kohat is resided by Zarghunkhel, Akhorwal, Shirakai, Tor Chappar, Bostikhel, Jawaki, its population is 0.088 million.16 The total area of the FR is 466 sq. km. Darra is the most important valley. FR Kohat is under administrative control of D.C Kohat.
 
FR Lakki is resided by Bhitanai tribe. The population of the agency is 0.007 million.17 The total area of the FR is 132 sq. km.

FR Peshawar is resided by Hasan Khel, Ashukhel, Pasani, Janakor, its population is 0.054 million.18 FR Peshawar is bordered by districts of Peshawar, Nowshera and Kohat, and Khyber Agency. FR Peshawar is under the administrative control of Political agent Khyber and Deputy Commissioner Kohat. The total area is 261sq. km.

FR Tank is resided by Tatta, Waraspun, Dhana. Its population is 0.027 million and total area is1221 sq. km. FR Tank is bordered by South Waziristan, FR Bannu and settled areas of DI Khan.

Special Status of FATA

Continuing a colonial legacy, the constitution of Pakistan grants the area a special status. Under Article 247 of the Constitution of the Islamic Republic of Pakistan, 1973, the Federally Administered Tribal Areas (FATA) falls under the executive authority of the Federation. In terms of Article 247 and the linked SRO 109, issued on 25-06-1970, administrative powers with respect to FATA vest in the President of Pakistan. He appoints the Governor, North West Frontier Province, to act as his Agent for FATA to exercise executive authority in these areas, in such manner and to such extent as the President may direct from time to time. The Agent to the President is assisted in his functions by such officers, as may be appointed for the affairs of FATA.

Rationale an Imperial Legacy

In the nineteenth century, Afghanistan and the adjacent tribal areas remained focus of attention of imperial powers, such as the British, Russia, Germany, Persians and the Ottomans. British policy in the Northern frontier of India was influenced by the imperial rivalry with Russia. British initially followed a close border policy but from 1878-1901, they vigorously pursued a forward policy. It was the period of rapid Tsarist expansions, Khiva, Bukhara and Farghana had been subdued. The way Bukhara and Samarqand fell, it seemed, Kabul and Kandahar would also fall to Russians, endangering eventually the British imperial holdings in Northern India. In 1874, during Prime Minister Disraeli’s rule, Britain decided to build a strategic line of defense against Russian penetration in Central Asia and beyond.19

To safeguard imperial borders against Russia, the British gained control of the Khyber, Kurram and Bolan passes. However, controlling Pukhtun tribes, the inhabitants and owners of these passes, became a gigantic problem.20 Troops could protect the settled districts, such as Peshawar, well enough. When they moved into the hills, the casualties were high, expenses of supply enormous, and the offending tribesmen remained elusive. A column of several thousand men could, at best, accomplish the destruction of an empty fort or an abandoned village.21 Unable to subdue the fierce tribes, the British avoided assuming responsibility and the resultant cost to administer trans border area, hence, did not declare it an integral part of the empire. However, to keep the passes open, to protect the settled districts, to deter external aggressor and to gain influence in the trans border area, the British developed a more complex system. This partially resembled that of the system of Moguls: the tribes were controlled through (1) subsidies, (2) playing one clan against another, and (3) hostage taking for future good behavior.22 The whole tribe or Khel were to be held responsible for the wrong doing of individual member. Also punitive military expeditions were carried out occasionally to punish the offending tribes and to demonstrate British authority in the area. This system of administering the area, by the British, seems to be the beginning of a ‘special status’, ensuing concessions/privileges, collective territorial responsibility, FCR and ‘so called’ tribal autonomy.

Despite subsidies, blockades and subversion the tribals remained intractable: From 1849-1878 there were 40 expeditions into the hills. These expeditions followed, what Sir William Barton, calls “burn and scuttle” policy. Since the troops seldom had an opportunity of an open battle with the tribesmen, fields were burned, houses destroyed, fruit trees cut down, and in a few classic cases the ground was ploughed with salt. For the British, it served to deter tribes from disregarding British regulations but in tribal eyes, the expeditions in most cases simply increased the weight of badal to be taken against the British.23

Following forward policy, during 2nd Anglo-Afghan War, the British expelled Afghan forces from Khyber and Kurram, as a consequence of Treaty of Gandamak, in 1879.24 The Amir Abdurrahman, perturbed at the advances of the British, had to agree and accept Durand Mission.25 “The boundary line was agreed upon from Chitral and Baroghil Pass up to Peshawar, and thence up to Koh-i-Malik Siyah [the trijunction of Persia, Afghanistan and Balochistan] in this way that Wakhan Kafiristan, Asmar, Mohmand of Lalpura, and one portion of Waziristan [Birmal] came under my rule, and I renounced my claims from the railway- station of New Chaman, Chagai, the rest of Waziri, Biland Khel, Kurram, Afridi, Bajaur, Swat, Buner, Dir, Chilas and Chitral”,26 narrated Amir Abdurrehman. The 1897 tribal uprising has been understood as a revolt against forward policy.27

After 1893, it was possible to think of a tribal belt under British control between Afghanistan and the administered border of India, a belt of which the limits were defined on both sides, east and west, and well known to all concerned. In the agreement the line was not described as the boundary of India but the frontier of the Amir’s dominions. The line beyond which neither side would exercise interference. British Government did not intend to absorb the tribes into their administrative system. They wanted to extend their own and exclude the Amir’s authority in the territory east and south of the line.28

Curzon, in 1899, resumed close border policy to reduce expenditure on military activity, and to keep tribal territory as a “march-land”.29 Regular troops were withdrawn and militias/scouts were raised in Waziristan, Kurram, and the Khyber. The security of the tribal area was handed over to militia units such as Khyber Rifles, the Samana Rifles, and the Tochi scouts. Subsidies were increased, and development of communication and transportation system provided work for the tribesmen. The political agents were given almost complete responsibility for their agencies, who, reported directly to the agent to the Governor General. Frontier Crimes Regulation (FCR) 1901 was used extensively.

In 1919, during the Third Afghan War, another tribal uprising erupted. Earlier, new Bolshevik Russian Revolution had also surfaced threatening the Orient. Large troops were sent to tribal area in 1919-29, followed by construction of road system, linking: Wana, Razmak, and Miranshah. Also were established, permanent garrisons in Razmak, Miranshah and Wana, reorganising militia system.30 In theory, the modified forward policy, also known as, Razmak Policy, was limited to Waziristan only. Still large cantonments were established at Wana and Razmak and troops re-entered tribal area, beyond the administrative border. In 1921, railroad linking Peshawar and Fort Jamrud was pushed up to Landikotal. In 1922, the Razmak Policy was approved by the North-West Frontier Enquiry Committee and it became known as “peaceful penetration”, “control from within” and remained effective till the end.31 This new forward policy, tried to assure that instead of military conquests it shall bring the hill tribes, benefits of civilization and economic improvement.32 However, little changed, the prevailing climate of force and suppression, continued. Few services were offered in health and education and no significant change occurred in the primitive living conditions of the tribes.33 It seems the successor state, Pakistan, inherited that policy towards FATA, and has been continuing above mentioned imperialist policy, with insignificant alterations. Following the Simon Commission, though self government was introduced in other parts of India but not in N.W.F.P., and tribal areas. It was believed that Pathans were neither capable of democratic self-government nor interested in it.

The right to vote for every adult male and female over the age of 18/21 was continuously denied to the tribes under one or other pretext by the state of Pakistan even when it was able promulgate its first democratic constitution in 1973. Presidential Order only allowed a few privileged/cronies the right to elect.34 Adult Franchise was introduced as late as 1996 in FATA, only to elect the members of National Assembly.

The State of Pakistan and the Borderland Tribes: The Indian Independence Act, Clause 7, Paragraph C, provides: “There lapse also any treaties or agreements in force at the date of the passing of this Act between His Majesty and any powers having authority in the tribal areas, and obligations of His Majesty existing at that date to any such persons or with respect to the tribal areas, and all powers, rights, authority, or jurisdiction exercisable at that date by His Majesty in or in relation to the tribal areas by treaty, grant, usage, sufferance, or otherwise.”

On the eve of independence, in March 1947, some Afridi Maliks called on Sir Olaf Caroe at Government House Peshawar, saying, “We won’t deal with a Congress Party. We won’t deal with the Muslim League. We may deal with a government representing both sides. We own the Khyber Pass and will bargain on that basis”.35 In April, Malik Abdul Latif Khan, Malikdeenkhel Afridi, threatened Lord Mountbatten during his visit to N-W-F-P, to negotiate a deal with Afghanistan, unless future relations were adjusted to his satisfaction.36

It is stated that tribal Jirgas made agreements with Sir George Cunningham to accept Pakistan as their new suzerain on the same terms as had existed with the British. It is widely believed that Mr. Jinnah graced an ‘All Tribal Jirga’ on April 17 in Peshawar in which 200 Mailks pledged their allegiance to Pakistan and requested that they be placed under the direct administration of the central government. The request was met on July 6; Jinnah created the ministry of States and Frontier Regions and took charge personally of tribal area.37

Pakistan came into being on 14 August 1947 as a result of partition of British India, comprising the provinces of East Bengal, Punjab, Sind, North West Frontier Province and State of Qalat (currently Baluchistan). With autonomous tribes (currently FATA), Pakistan had to reach an agreement. It is widely believed that Mr. Jinnah, the Governor General of Pakistan, gave a solemn pledge to the tribes not to interfere in the internal affairs of the tribes in exchange for joining Pakistan. Agreement with all tribes, during 15 to 22 November 1947, were negotiated and signed by the Political Secretary, Mr. A. S. B Shah, on behalf of Mr. Jinnah, the Governor General of Pakistan on16 June, 1948.38 The modus apparendi of agreements had been that various political agents held meetings with tribesmen as individuals, at times, at gatherings, and signed documents promising allegiance to, and cooperation with Pakistan, in return for continued allowances and benefits.

For instance, in Khyber, on 12-15 January 1948 and 10 May 1953, agreements between tribesmen and Political Agent took place.39 N A Faruqui signed these on 30 Sept. 1955, on behalf of Government of Pakistan. In Kurram, from 15 November to 21 December 1947, agreements of allegiance to Pakistan, and pledge to assist Pakistan, were concluded and signed by ASB Shah on 16 June 1948. Prime Minister, Liaqat Ali Khan visited tribal areas in mid January, 1948 requesting on 15th January a Jirga at Landikotal for withdrawal of tribesmen from Kashmir. The tribes realized that the withdrawal of Pakistani troops was not carried out from a position of strength, as in the days of Curzon but from weakness because troops were needed on the Indian border and Kashmir.40 This points to the fact how Pakistan’s Kashmir policy has been instrumental in shaping the special status of FATA.

Constitutional and Legal Status of FATA

The first constitution of Pakistan, in March 1956, provided for a parliamentary form of Government for the rest of Pakistan but did not bring any change in the political and administrative set up of tribal areas. In 1962 constitution article 223 kept tribal areas outside the jurisdiction of Central and Provincial laws owing to their peculiar conditions and problems. Special powers of legislation were given to the Governor of the Province in which the tribal area was situated. The Governor with the approval of the president was empowered to make, repeal and amend any regulations or could amend any central and provincial law for the whole or any part of the area.41 The system of Basic Democracy in Ayub Khan’s era was extended also to tribal areas and representation was granted in national and provincial assemblies of Pakistan. One member each from an electoral college of basic democrats was elected to the national and provincial assemblies.

Under Article 247 of the Constitution of the Islamic Republic of Pakistan, the Federally Administered Tribal Areas (FATA) falls under the executive authority of the Federation. In terms of Article 247 and the linked SRO 109 issued on 25-06-1970, administrative powers with respect to FATA vest in the President of Pakistan who has appointed the Governor, North West Frontier Province, to act as his Agent for the FATA. The right to vote for every adult male and female over the age of 21 is denied to the tribes under the President’s Order No.1 of 1975 called, the “Preparation of Electoral Rolls (FATA) Order, 1975”. By this order only Maliks and Lungi holders are registered as voters by the political agent not the people. The political agent confers the status to his favourite and loyal with the formal consensus of commissioner.42 The colonial system of political administration has been continued rather strengthened with marginal changes. Adult Franchise was introduced in 1996 to elect National Assembly members on non-party basis. Political Parties Act has still not been extended till this date.

The System of Administration

Political Administration

Political Administration in the tribal areas represents the Government and signifies the writ of the executive authority of the Federation. A Political Agent (PA), assisted by Assistant Political Agents (APA)/Officers Incharge of specific Sub Divisions, heads each agency. The Political Tehsildars (PT). Naib Political Tehsildars (NPTs) and the Political Moharirs represent the grass root functional entity of the Political Administration. The Frotnier Regions are in the charge of the District Coordination Officers of the respective districts. Day to day affairs are attended by Political Agent, the Assistant Political Agents or the Political Tehsildars posted to the regions. The Political Agents and DCOs, incharge of FRs, work under the overall administrative control of the Governor’s Secretariat (FATA). The system of political administration has been basing on the principle of ‘collective responsibility’ and ‘territorial responsibility of the tribe’, executed through a body of elders/mashers called ‘Maliks’ in receipt of subsidies/allowances known as Moajib, Lungi.

The System of Collective Territorial Responsibility: Under the system of Territorial Responsibility, presumably having the approval of the local population, if a crime originates anywhere, the section of the tribe on whose soil crime is committed, is held accountable and answerable to the Government. It is the corner stone of Political Administration. Sir Herbert Edwardes devised the technique43 of collective responsibility, which meant that the whole tribe or khel would be held responsible for the wrong doing of its members. It was first exercised against kukikhel Afridi in whose area a British messenger was waylaid and robbed him of quinine bottles.44 It proved to be a useful tool for the British and various successive rulers to control the tribes. The principle of collective tribal territorial responsibility is presumed to be enshrined in the customs and usages prevailing in the tribal areas.

Administration: Concessions and Disputes: Subsidies/allowances payable to the assured tribes are known as Moajib in the parlance. It guarantees continuous allegiance of the tribes to the state. During the Mughal and Durranis period, subsidies were paid in lieu of way through various passes. The British Empire followed this rule and it is still in vogue. The Frontier Corps is the principle force available to maintain law and order in the FATA. Frontier Constabulary is required to man the border between the tribal and settled areas. The tribes are provided with Khasadars to ensure law and order within their area of responsibility.

Malaki System: A system of Maliki (triadional leader), to exercise stronghold and influence over tribes, was introduced by the British, which encouraged those tribal elders, who supported government and administration. These Maliks acted as middlemen between administration and clans or tribe, "Qaum". Maliki system sent a message to the tribes that individuals loyal to and working with the throne may secure a privileged status and cooperation with government entailed regular material benefits, both in cash and kind, recognition, as well as influence in the tribe. Maliki became hereditary and devolves on the son. Mr. Bruce in 1889-90 introduced and implemented Maliki system to control tribes. Leading figures were selected and graded, keeping in view their power and influence. They were offered privileges and allowances by the British government in return for supplying tribesmen for service in levy to guard their area and exercise control over tribes and to surrender criminals to govt. for trial.45 The Maliki system was developed to make it easier to deal with tribes through a limited number of tribal leaders. Hence, the power and influence of the maliks was enhanced to enable them to control their clans effectively. Though personal character and ability were important factors to increase influence, yet wealth, standing of family and approval of the government were essential in getting and holding the title. It became a hereditary institution. The government of Pakistan has been maintaining the Maliki system as an effective tool of administering tribes.46 Maliks are supposed to be the sole spoke persons to safeguard and advance the interest of respective tribes and clans and senior partners in the development process and social change initiated by political administration. The title, is conferred by the Political Agent under FCR.47 It entitles one to subsidies and allowances and monetary benefits as well. Another form of formal recognition by the political administration, though at a slightly lower level, is Lungi system, commonly known as "Spingiri”. Lungi signifies the holding of a position of favour with the Government and of influence in the tribe. The Lungi is for an individual and is not hereditary. In practice, however, the Lungi of a deceased Lungi holder is usually granted to his elder son. Kharch is expense money paid for some specified task performed for the political authorities.48

The British used subsidy as a weapon to which in conjunction with the blockades could compel the tribes through economic pressure to do what they were required to do.49

Khasadari: In the 1920s, the British Rulers intended to open strategic roads in different Agencies. To guarantee the protection of the roads, the British agreed to give allowances to the tribes in the form of Khassadari. 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. They were not supposed to carry out "Bramtas"(recovery). During the British time Scouts, at the disposal of the Political Administration, carried out Bramtas,
The Khassadars even today are generally ill disciplined, mostly un-trained, a loosely organized, non-pension able force, armed with personal weapons and use their own ammunition. They are granted a pair of Chapplies and a Mazri Cloth, uniform, once a year. They represent the tribe and owe loyalties to them not to the Political Administration. Every Agency has its own rules and conventions for the Khassadari service. The Khassadars are responsible for the road protection generally.

During imperial days, Scouts were considered the private army of the Political Agent. The Khassadars were to serve as guides when Scouts moved into tribal territory. However after partition of the Sub-Continent and with the change in the role of the Scouts following the withdrawal of the Army from tribal areas, the Political Administration began to rely mostly on the Khassadars for arrests and other such duties. Since the availability of the Scouts to the Political Administration became very difficult, it adversely affected the Administration in tribal areas making the task of the Political Agents harder and more demanding. Owing to unreliability and inherent deficiencies of the Khassadars, numerous operations and duties to be performed by the field officers failed. The Khassadars are recruited by the Political Agent as the Commanding Officer, from amongst the local tribes, keeping in view, the ratio of tribal distribution, Nikkat, to perform following services:

1. Protecting their areas from raids and offences committed by gangs or individuals.
2. Providing escorts to Government officials and to protect Government property from being damaged.
3. Investigation of reports, providing true information regarding hostile activities or intentions.
4. Tracing whereabouts, and recovering persons kidnapped from the settled districts or Government roads and territory within the tribal areas.
5. Reporting incidents occurring in their area.
6. To summon or provide safe conduct to persons required by the administration.

The Scouts, Khasadars, and Frontier Constabulary, as they exist today, were reorganized in1919-20. Since men of Khyber Rifles, Tochi and Wana Scouts mutinied during third Afghan War. A British officer from regiments of the Indian Arm headed a scout unit in each agency. To prevent mass desertion no more than one third of the scouts enlistees could be from tribal territory. The main duty of the scouts had been to maintain British political control and to preserve a necessary minimum order and preventing raids into the districts. Frontier Constabulary, officered by members of the Imperial Indian police, “seconded” from their service, had been a province-wide security force, its posts were established on the border of the settled district and authorized to operate in tribal area on need basis. It was entrusted to repel raids from Tribal Territory into the districts, to capture of proclaimed outlaws, and to patrol roads and communication.50

Other informal institutional arrangements for inter/intra tribal interaction and between government and tribes to settle disputes include:
Nikat, is the scheme for the apportionment of profit and loss. Nikat is raison d’etre of the tribal system denoting share(s) in profit and loss within the tribe and between the tribes according to ancestral “wesh” (distribution), Riwaj, local custom; Sharia, Muslim law; Wak, Mandate for settlement of disputes; Nanawati, Request for forgiveness; Lashkar, tribal armed contingent; Chalwashti; Jirga and Maraka

Legal Framework

It includes:

1. FCR (Frontier Crimes Regulation) 1901.
2. Frontier Corps Ordinance 1959.
3. PPC (Pakistan Penal Code).
4. CrPC (Criminal Procedure Code).
5. Riwaj
6. Other Laws
7. Tiga – Cease Fire – Truce

Political Agent acts as District Magistrate (DM) and Session Judge. The APA exercises the powers of Additional District Magistrates and performs as the Courts of Original Jurisdiction under the overall administrative control of the Political Agent in his capacity as District Magistrate. Appeal against the orders of Additional District Magistrates and District Magistrates lie to the Commissioner FCR. In the year 1997, the FCR was amended allowing Second Appeal in the shape of Revision before a Tribunal consisting of the Secretary Tribal Affairs and the Law Secretary, Government of NWFP. A committee has been notified to examine the existing Crime Regulation 1909 (regulation No.III) and propose amendments therein. Any administrative change, noticed post Afghan Jehad period, has been having an additional chief secretary FATA and FATA Secretariat itself.

Frontier Crimes Regulation (FCR): The British introduced a special procedure, different from ordinary legal procedure, for the trial of cases in tribal areas. Under this special procedure the Deputy Commissioner with the concurrence of the Commissioner was authorized to order the removal of villages, restricting the erection of hamlets without the sanction of the Commissioner, to detain all or any member of the tribe acting in a hostile manner, imposition of fines on villages and communities. It also authorizes him to refer civil disputes and criminal cases to the council of elder for decision. The first regulation was introduced in 1871 known as the Frontier Crimes Regulation 1871, the second regulation was known as The Punjab Frontier Crimes Regulation of 1887 and the final version was the Frontier Crimes Regulation, 1901. Frontier Crimes Regulation of 1901 provide for the referral of civil and criminal cases to Jirgas appointed by deputy commissioners, blockade of tribes as penalties, community fines, prohibition in certain cases of the erection of new villages, the removal of established villages where necessary to maintain law and order, regulation of hujras and imprisonment to prevent crime. Though Jirga is a Pathan institution, but “the form it took under the Frontier Crimes Regulation was a far cry from its natural state.” 51 The members of the Jirga were appointed by the Deputy Commissioner and if he did not like decision brought in by the members of the Jirga he could remand the case for further enquiry or refer it to another Jirga. The decisions of the Jirga were recommendatory and the actual acquittal or conviction and sentence could formalize in a decree by the Deputy Commissioner.52

After the creation of Pakistan, FCR was challenged in the High Court on the ground that section 8 and 11, which lay down a special procedure for the decision of civil and criminal cases are inconsistent to the fundamental rights guaranteed in the constitution of Pakistan, 1956. Court declared it to be violating the constitution of Pakistan.

Tribal Culture

The Pakhtun society, in general, is a traditional setting with predominantly agrarian characteristics. It possesses a relatively united and cohesive social system heavily revolving around customs and traditions. An in-built social mechanism of Pukhtunwali enables resolving conflicts, bringing harmony and order. Its traditional social structure is based on inter-clan linking and tribal affinity, which unites the Pakhtun people in a web of kinship relationship. “To an outsider," writes Meyer Fortes, "these clans and sub-clans division seems to be a point of disintegration, but this duality is not in fact the disintegrity, but it is the integral result of the inner symmetry of all social transactions of the reciprocity of services, without which no primitive community could exist.”53

For a better understanding of a tribal customary organisation based on the principle of blood relationships, a sample of patrilineal structure of the Afridi tribe is presented below:
The Afridi tribal organisation is patrilineal. A family, usually represented by a father (Plar), is tied together into a Plareena, a flock of various families having the same lineage (common ancestor). Various Plareenas, of little distant ancestors make a Kandae, which in turn gives birth to a Tapa, while Khel54 is a sum total of various Tapas, Kandis and Plareenas. Thus, the eight different Khels (clan) of Afridis constitute the whole Afridi tribe or Qaum. 55 Each clan or Khel is a separate entity led by its own elders (Spingiris), whose affairs are settled by its own jirga (council of elders). A number of such clans or Khels may combine to form a Qaum56 or a tribe.

Consequently, every, Pakhtun sub-clan, clan, sub-tribe and tribe is connected in one way or the other with every other and constitutes a real social and cultural entity. As a rule the basis from the smallest to the largest is blood relations, real or imagined. Therefore, a tribal social organization inherits the joint extended family system reinforced by the real or expected fear of blood feuds and factions. One family is bound to have intimate ties with the other forming a wider sphere, one clan entering into a social bond with other for mutual social and economic security. Inter-familial and inter-clan bonds are maintained, preserved and regulated by promoting inter-family or inter-clan marriages. Directly affiliating other clans through contacts of marriage alliances further strengthen the tribal social bonds. As a result, “the clan unites the clan members during warfare and they are both religiously and politically bound to get together on the occasions of happiness as well as hardship. Therefore, in general, the clan seems to function primarily in the economic, recreational, political and military spheres”.57

A family58is the building block of the overall social organisation of tribal society. It is more than a group of related individuals, not only share family honour, property, and traditions but also hate and love relationships with other families and clans. Family is a multi-purpose social organisation tremendously influencing cultural, political, economic, and educational needs and aspirations of its members. It is a close system, its membership is limited mostly based on the birth rights. One cannot leave the family organisation without undergoing a considerable trauma. The tradition of joint family system, in some cases, more than four generations living together in a perfect communion, is still prevalent amongst the tribes of FATA.

Members of each family acknowledge, with deep respect, the authority of their elders. Age (taken almost equal to experience) is considered to be the most important factor among the Pakhtun people. Internal and external affairs of a family are usually decided by grand father, father or the eldest male in the family. Pakhtuns strictly believe in their family traditions, keeping always in mind the prestige and reputation, they enjoy amongst the clans and the tribes. They always take pride in their ancestors and admire instances of their hospitality, prudence and chivalry (ghairat). The proverb, “to be a man like their forefather”, is a common phrase heard during daily interactions. A family is admired for its status and strength, wealth alone is not the only source of esteem. A family with a substantial manpower, equipped with fire-power, and able take the risk to offend, and defend itself, is considered to be an influential family and respected throughout the tribe even today.

A tribeman, an Afridi, Shinwari, Turi, Bangash, Wazir or a Mahsud is bound to live in his interlocking and ramifying tribal customs and ties. He accustoms to certain values, the basic elements of his kinship structure and broader Pakhtunwali norms. An intimate relationship between an individual and his surroundings continues to develop during his process of socialisation. Broadly speaking, "The kinship system in the tribal society constitutes a body of rules, which govern descent, succession, marriage, and extra-marital relationships. Moreover, it determines the status of an individual and group in respect of their ties of consanguinity."59 What gives stability and solidarity to their social structure, writes A.R. Radcliff & Brown, “is the continuity of their lineage and its connection to that of larger tribe or group of tribes, composed of related lineage. For an individual his primary duties are to that of his own sub-tribe. Those include duties to the members now living, but also to those who have died and to those who have not yet born.”60

Pukhtun tribes, in general, are assumed to be following a code known as Pukhtunwali having notions such as badal (revenge), Nang (honour), khaigara (compassion) mailmastia (hospitality), Nanawati (seeking forgiveness) and institutions Jirga (a gathering of male tribal elders to decide important matters and administer justice) and Hujra (a male community hall or club, to discuss important issues, also play, sing and enjoy) establish and reinforce superiority of men. Badal is the obligation of tribesmen to take revenge for an insult or injury incurred not only to individual but to the clan and tribe too.61 Jirga is purely a male institution, women in no form are allowed to sit in Jirga.  Hujra and Jumat (mosque), two most important sites of social activity in Pukhtun tribal society are denied to women.

Pukhtun tribal society is driven by honour: two principal loci of men’s honour are women and land. Both, women and land, are jealously guarded62 and are often the primary source of blood feuds. Historically certain notions were emphasized and others ignored keeping in view the need of the establishment.

Nexus of Pukhtun Culture and Islam under Special Status Enabling Illegal as Licit

It is generally believed that knowing the sensitivities of the tribal to autonomy and self-rule the British gave a special status to tribal agencies. Which allowed tribes to organize their social life according to their customs and traditions and the British rule was limited to government property, main roads and a hundred yards on each side of the road.  It was a gesture to the tribes that British Government had no intention of interfering in the internal affairs of the tribes and they can settle their disputes in accordance with their traditions and customs. It pacified the wrath of the tribesmen and made space for an alien government. Our survey based on Focus group discussions and personal interviews with a cross section of tribal people reveals a picture which is quite the opposite. Tribal perception is of mistrust and allegation against administration. Tribal people categorically rebuff this notion by saying, “There is nothing called tribal culture, Pukhtun have similar customs and traditions, culture, rituals of marriage, death, notions of hospitality revenge magnanimity etc., are similar every where, its sources are both Pukhtunwali and Islam”. (Khyber, Kurram Minutes)63.

The British promulgated Frontier Crimes Regulation, 1901 to maintain law and order, and ensure speedy settlements of disputes in tribal areas. The procedure to decide criminal and civil cases under FCR is markedly different from normal legal procedure.  FCR authorizes the magistrate to refer cases of blood feuds and honor related issues to be settled by Jirga, gathering of local elders, according to local customs. The main tool of the political administration to maintain law and order in tribal areas is the provision of Collective Territorial responsibility in FCR, under which if a crime is committed in the area of a clan then the whole clan is considered responsible and has to hand over the criminal, failing which may lead to collective punishments including demolishing and burning of houses, heavy fines and confiscation of property.

Though, FCR is presented to be safeguarding the autonomy of the tribes, but in reality it provides unbridled power to the political administration. PA can impose blockade on hostile tribes, imprison people without any crime, levy heavy fines, can order removal of villages, and demolish buildings etc. The Deputy Commissioner is empowered to refer cases civil and criminal cases to the Council of Elders for decision, and the Council of Elders could award a sentence of up to 14 years. All this is manifestation of enabling illegal acts licit and legal in the name of tribal traditions and FCR.
Political administration comprises PA, APA, Tehsildar, Naib Tehsildar, poltical Muhrrar, clerical staff, khasadar and levy. Tribal population abhors this system of political administration and considers it to be the root cause of all problems in FATA such as lack of water, electricity, employment opportunities, health facilities, sectarian violence and religious extremism.

‘PA is like a king, he wields unbridled power’. Tribals complained of heavy fines under collective territorial responsibility of FCR, imposed by the political administration. Women said, we even had to sell our jewelry and household things to pay for that. ‘The whole population, except the smugglers and Maliks, is the victim of the system’.  ‘We are oppressed by the system and wish to go somewhere else’. (See minutes of Kurram, Khyber) Unaccountability of political administration has been strengthened by special status of FATA and people are denied recourse to their grievances in any court of law or representative, elected, government. Special status only benefits smugglers and Maliks, the rest of the population is all wary of the system. (Khyber Minutes) In the name of Pukhtun customs and traditions, Islam and noninterference in tribal autonomy, a space has been created amongst Pukhtun tribes in FATA which eulogize   features of Pukhtunwali such as ghairat (honour), badal (revenge), melmastia (hospitality), possession and display of firearms, Jehad in the name of Islam and free trade in arms and narcotics. Special status of FATA sanctions and reinforces this all and these practices are made licit and legal. (See minutes Khyber, Kurram).

For X…. Khan, Adam Khel, Ashu Khel, Alikhel, presently residing at Kukikhel Sher Khankhel,  “illegal (illicit) activities, ascribed to the tribes, such as forging documents, car lifting, creating fake currency notes, gun and drug running, all are happening in collusion with government functionaries and their agents are involved in it.” (Khyber Minutes).
The special status has enabled the militants to operate freely in tribal area and corrupt young minds in the name of religion. Mohammad Y, Mobi khel, lives in Landikotal is one of such examples. He has been an undergraduate student at Landikotal College, working as a private school teacher as well as representing an Urdu Daily Newspaper.  He was the first to break the news of capturing of Buddhist sculptures at Pak-Afghan border. In 10th year of his school education he also became a pupil of a madrassa at Landikotal, near his school. Hazrat Nabi Shinwari, Alias Tamanche (Pistol) mullah, belonging to Harkat-ul-Mujaheedin, a militant organization, ran this madrassa. Tamanche mullah imparted at masjid-e-Quba, near Landikotal railway station, religious education to Mohammad Y along with many young men. That awakened and strengthened the spirit of Jehad, martyrdom and longing for paradise in him and fellow students. Finally, he was recruited for seventeen days training and sent to Mansehra along with 500 other trainees. He underwent rigorous training with them which included religious physical and weapon training to fight the infidels in Kashmir and Afghanistan. He recalled, and narrated in detail, the physical facilities, food, training and overall pass time activities, at the training camp. One, who agreed to get training once, could not leave or flee the training camp. Any attempt in this regard could follow physical extinction. He left the camp after falling ill and did not join it again. He also tried to distinguish between Jihad and other conflicts. War of Talib against American and Nato forces was considered Jehad while fighting with Afghan army was not a Jehad, similarly Talib fighting against Mujahid was not a Jehad. Jehad has to have a reason.

Subsequently his views changed considerably. Currently he considers abuse of religion for political purposes wrong. He is for access to quality education for both men and women and wants health facilities for everyone. He is against FCR, Political Agent and Maliki system and wants introduction of courts, and adult franchise.

Local people consider political administration and agencies to be involved in militant activities in FATA. ‘Afghan war and war on terror has increased guns and narcotics smugglers and abuse of religion.’ ‘Militant groups are having links with agencies. ’Major D., Zakhakhel, a former tribal law enforcing personnel, argued. Mangal Bagh and others like him are creation of secret agencies. ‘Armed militia of Mangal Bagh and Saif-u-Rehman provided leadership to the unemployed and the marginalized. They were able to unify and arm their followers.’ ‘Afghan war has adversely affected law and order situation in FATA and a criminalization happened after Afghan war. Afghan and International actors are also responsible for that.’ (Khyber Minutes) Though Gun and narcotic running are illegal activities and so is raising armed militias but under special status all these activities are given sanction and made licit and legal, though tribes are against these practices.

Special Status, in the name of tribal culture and Islam, deprives women of their legitimate fundamental right to land ownership, inheritance and divorce declaring it illicit. It encourages forced/early marriages and domestic violence considering it licit in tribal culture and religion. (Khyber Minutes).

Owing to land settlement and revenue record in Kurram daughters and wives are included in the list of inheritors according to Sharia. In case of Sunni faith both wife and daughters and in case of Shia sect only daughters are inheritors, since in Shia sect wife does not have a share in inheritance. There is a tribe Zeemasht in Kurram agency who at the time of land settlement denounced Sharia in favor of Pukhtunwali to deny women the right to inheritance. In the record of Zeemasht tribe women are excluded.

In Khyber agency since revenue record does not exist, most of the women thought that they don’t have any claim to land ownership. Women in Khyber Agency were also of the view that man has obtained land through force, so how can women demand share in it?  In Landikotal tehsil there was not a single case of a woman having land.  In Jamrud tehsil there were only two cases where women were given share in the inherited land. In one case a nephew gave his paternal aunt some inherited land so that she could sell it to have some money for her treatment. In another case a father gave some land to her daughter, made it recognized by the clan. Later his son bought that same land from her sister by paying full price.

In Khyber agency if a man dies without a male descendent, his land and house is occupied by his paternal uncles and cousins. And it is also the cause of preference for a male child who can own and protect the property. There had been cases when a man’s wife and daughters are expelled from his belongings.

In Kurram agency women at least in papers own land. This fact has given some recognition to their right in some cases.  As a brother in order to make his sister denounce her share in his favor in record, tries to please her by paying for her Haj expenses or would give some money as a gift. Having their share on record in Kurram has also generated awareness among women about their right to land ownership. All female respondents in Kurram Agency wanted to have their share in land. They proclaimed that since Islam gives us this right, no one should deny it to us. A woman aged 75 told us that I will never give the thumb impression to my brother at any cost. Though I could not get my share and I am near death but still I want my share to remain mine. (See minutes of Kurram).

In Kurram agency, women in spite of land ownership share on record and having awareness of legal rights cannot effectively hold land. The main hindrance seems to be the special status of FATA that makes it illicit for them to hold it. The political administration is interested in the law and order situation alone. Civil cases are referred to Jirga; a gathering of tribal elders who decide cases according to Sharia and Pukhtunwali. It is purely a male institution comprising of male members alone, a woman cannot even take her case to Jirga, since her grievance can only be presented by male family members. Often complaint can be against them, and the male do not recognize women’s right to land. A husband does not demand his wife’s share in property fearing that he might have to give it to his sisters. One of the respondents, a traditional elder, often Jirga member to settle disputes of people in the community emphatically declared, women have no right to land. ‘Men work at lands, they protect shamilat, canals and forests, even give their lives for that, so the lands must belong to men. In tribal organization giving women ownership of land create complications, in tribal organization people from one clan or tribe are not allowed to hold land in the territory of other tribe or clan. If a woman is married in other clan or tribe then her children would inherit property in the territory of another clan or tribe which is contradictory to the tribal traditions’. (See Kurram minutes). If women are able to have share in property what may happen? This narrative can shed some light:
Haji A belongs to Ghundi Khel clan from Samir village. Narrating the events of his maternal aunt’s murder he referred to his grandfather Malik Sardar Hussain B.Sc (the first man of the village to have done B.Sc). Sardar Hussain had one daughter Janoo and a son, Israr Hussain from one wife and two daughters Haji Eid Bibi and Durrani bibi from second wife. His only son died when Malik Sardar Hussain was alive. Eid Bibi chose not to marry to look after her father who died in 1996.

In his will Sardar Hussain disinherited his late son’s children (As Muslim law has been practiced in many societies) and granted his property to his three daughters. Hurr Hussain, son of Israr Hussain, challenged the will on 3 grounds including that in the presence of male heirs, female heirs cannot inherit property. Eventually Political Administration dismissed the appeal of Hurr Hussain. Eid Bibi, one of the heirs who lived with her married sister, Durrani Bibi, was a social worker, helped to form CBOs. In 2005, Hurr Hussain killed Eid Bibi, aged 65, on the main road, accusing her having illicit relation with her brother in law. They argued, she is closer to us in relation as she is our paternal relation (aunt) and their maternal (aunt), why she lives with them? She was shot 25-30 bullets, damaging her whole face. Eid bibi has left her share to her sister Durrani bibi, mother of Haji A. But they don’t have possession of land, it is in dispute. Murderer is in jail, he is a retired militia person. They said property is ours, Pukhun don’t give property to women. Even they don’t accept Islam, they were urged by our Pesh Imam, but they take refuge behind Pukhtu. The tribe did not interfere they tried to be neutral but now many people are not talking to him. They should not have killed a woman. Political administration has not been able to give possession of land to the heir. Had Pakistani law been extended to FATA, aggrieved could go to High Court and Supreme Court, Jirga can easily be manipulated, said Haj A.

Islam and Pukhtu, when come into conflict to advance contesting claims, regarding property, one or the other makes licit, illicit and prevails. Male’s effort to disinherit females brings Pukhtu into play. In the name of honour even women can be killed and murderers can get away with it citing local tradition and culture. Preference of patrilineal relationship over matrilineal relations and absence of male protector makes women more vulnerable when special status prevails and court of law is absent.

Absence of family laws and courts deprives women of their rights of consent marriage, property, divorce and makes them submit to domestic violence. Divorce though legal in Pakistani law but is declared illicit and not approved in tribal areas. When a woman faces hardships at the hands of her husband or in-laws, she is asked to bear till death for the sake of Pukhtu. (Khyber Minutes) Divorce is not possible, no matter whatever problem she has. In Khyber Agency, girls are married in very young age, mostly at 15. An 18 year old girl is considered passed the age of marriage, respondent deplored. (Khyber Minutes) Blood feuds, arms are the outcome of special status. (Khyber Minutes).

State of Reform and Development

Following reforms have been long overdue in FATA:
Adult franchise denied to tribesmen was finally introduced in 1996 to elect National Assembly members. However, elections are still not held on Party basis and political parties are not sanctioned to operate. Extension of Political Parties Act to FATA is still pending in the Supreme Court of Pakistan. Though, in the past tribal MNAs elected on non Party basis had been used to bring down governments of both Benazir Bhutto and Nawas Sharif in 1990s. Electoral representation at union, tehsil, agency and FATA level is not allowed yet. The Local Government Ordinance 2001 still awaits introduction in FATA. There have been various civil society/professional groups advocating for introduction of adult franchise, extension of Political Parties Act, electoral representation at all levels, including provincial assembly/separate province/agency council, institutional reforms in FC, levy and Khasadar and abolishing/amending Frontier Crimes Regulation (FCR).

In concrete terms amendments in Article 1, 246, and 247 of the Constitution of Islamic Republic of Pakistan (1973) are frequently suggested:
Separation of executive and judiciary at all levels with special bench of High Court for FATA.

Jirga is a constitutional entity as provided under article 247, but the present use of Jirga for resolution of cases/disputes should be reformed as follows:
Jirga must be representative, shall take decisions supported by evidence, and appointment of members shall be made with the consent of parties involved. As far as the major tribal disputes are concerned, Jirga shall be nominated by Agency Council.

In major tribal issues, whether civil or criminal, Jirga members shall be nominated by the Agency Council. Legislation for FATA should be done by the Provincial Assembly on the subjects related to the province, while the legislation on the Federal subjects should be done by the parliament.

Peace must precede all development initiatives. Instead of Badal tradition of khegara needs to be promoted. Social sector must be given top priority. Education should be diversified and employable skills provided to students. A well organized university should be provided at a suitable place in FATA. Tribal students should be allowed to compete both on quota and merit basis for admission to professional and other colleges. A centrally located Export Processing Zone (EPZ) should be established in FATA. Attractive incentives should be provided for investment in the exploitation of minerals and other natural resources.

Conclusion

The British, in the North Western borderland of former British India (currently, Pakistan), to protect and promote its imperial holdings in the area and beyond, created this region with a ‘so called’ special status. Pakistan, during last 62 years has been sustaining and reinforcing this special status for domestic as well as external purposes. External reasons, to grant and perpetuate special status include: imperial rivalry during Great Game, Cold War, Afghan Jehad against Communism and War on Terror. Domestic reasons had been: to curb Pukhtun nationalism with promoting Islamism, destabilizing neighbours, corruption and embezzlement of developmental funds as well as alleged bringing down elected governments by civilian and military dictators. On surface this special status appears to be granting concessions, privileges and autonomy to the tribes. However, a deeper analysis reveals that it has been mostly fulfilling the interests of the powerful domestic establishment and its more powerful international allies, in the name of defending, ‘national security’, ‘territorial integrity’, ‘national interest’, ‘free world’, faith and modern civilization. Collusion of International actors, national security establishment, tribal political administration and their protégées, during Afghan Jehad, in the 1980s and 90s, not only used, but also sustained rather expanded the existing space for illegal practices in the name of tribal/religious customs and traditions. Practices such as: possession, carriage and use of sophisticated, heavy weapons; provision of sanctuary, arms and training to alien militants, mostly hardened criminals, fugitives of law in their own states; waging an undeclared war against Soviet/foreign infidels and their Afghan lackeys (fellow Pukhtun, Muslims) were promoted that eulogized traditional Pukhtun chivalry (Nang)/ Muslim holly war (Jehad), hospitality (melmestia) and revenge (Badal).

Hence, illegal trade in arms, drugs, smuggled goods and alien mercenaries became licit, accepted norm, bringing profit, power, prestige and connection with the authorities. The tribal people, on the other hand, remained underdeveloped and deprived of their fundamental human rights. These practices continued till 9/11 happened and differences between various actors appeared. Pakistan had to join the ‘War Against Terror’, non state actors had a different agenda and international coalition is locked in a battle with its former allies in Afghan Jehad. The shifting interest and alliances has deeply impacted FATA and the notions of legality, illicitness and tribal culture are requiring new meanings and definitions. And there exist indigenous voices for reform and use of force to silence any effort of reform.

Bibliography

1. “A group of people comprising a number of families and households, the chieftains of which claims descent from a common ancestor.” Webster New Twentieth Century Dictionary.
2. “Development Briefs of Khyber Agency”, in AGENCIES/F.Rs Development Briefs of FATA (2002-03). Bureau of Statistics Planning & Development Department, Government of N.W.F.P.
3. “Development Briefs of Kurram Agency”, in AGENCIES/F.Rs Development Briefs of FATA (2002-03). Bureau of Statistics Planning & Development Department, Government of N.W.F.P.
4. “Development Briefs of North Waziristan Agency”, in AGENCIES/F.Rs Development Briefs of FATA (2002-03). Bureau of Statistics Planning & Development Department, Government of N.W.F.P.
5. “Development Briefs of Orakzai Agency”, in AGENCIES/F.Rs Development Briefs of FATA.(2002-03). Bureau of Statistics Planning & Development Department, Government of N.W.F.P.
6. “Development Briefs of South Waziristan Agency” in AGENCIES/F.Rs Development Briefs of FATA (2002-03). Bureau of Statistics Planning & Development Department, Government of N.W.F.P.
7. AGENCIES/ F.RS Development Briefs of FATA (2002-03).
8. AGENCIES/ F.RS Development Briefs of FATA (2002-03).
9. Bangash, A.M., Political And Administrative Development of Tribal Areas: A Focus on Khyber & Kurram. Unpublished Ph.D. Dissertation, University of Peshawar 1996.
10. Bruce, I. R., The Forward Policy. Longmans, Green & Co, London 1900. Reprint 1977, Quetta.
11. Caroe, Olaf, The Pathan: With an Epilogue on Russia. Oxford University Press, Karachi 1983.
12. Colonel Coke, the officer in charge of the Kohat Pass, first enunciated the notion of Collective responsibility for Afridis. He prescribed the procedure in case of trouble thus; “to close the Pass at once, seize all the Afridis to be found in the Peshawar and Kohat Districts, put the men in jail, sell their cattle, stop all Pass allowances held by the Afridis, and, when the matter is settled, cause all losses to be made good, not from their confiscated allowances, but from the allowances made from the time they may commence”. See, Government of India, Central Asia, Part I, I, 6.
13. Documents of agreements can be found at the Library of FATA Secretariat.
14. FATA Sustainable Development Plan (2006-2015). Government of Pakistan, 2006.
15. Fortes, M., The Web of Kinship Among the Tallensi, International African Institute, London 1949, pp. 4,5; Malinowski, B. Crime and Customs in Savage Society, Routledge & Kegan-Paul, Ltd, London 1961.
16. Important Agency/ F.R…, (2000-2001).
17. Important Agency/ F.R…, (2000-2001).
18. Important Agency/ F.R…, (2000-2001).
19. Important Agency/F.R. Wise Socio-Economic Indicators of FATA (2000-2001). Bureau of Statistics Planning and Development Department, Government of N.W.F.P.
20. Important Agency/F.R. Wise Socio-Economic Indicators of FATA (2000-2001). Bureau of Statistics Planning and Development Department, Government of N.W.F.P.
21. It should also be noted that in Pakhto language there is no single popular term to denote all tribes jointly in a composite sense. Although, the Pakhtuns living in the Tribal Area of Pakistan refer to themselves collectively as ‘qaba’il,’(tribesmen, pl. of Arabic qabila, which is itself generally translated as tribe. Whereas, almost all of the tribal units called themselves as a ‘Qaum,’ like the Afridi qaum, the Mohmand qaum, the Wazir qaum, or the Turis and Bangash qaum, etc. which literally mean a nation and thus a source of confusion for the outlanders.
22. Khyber, Kurram Minutes are interviews and focused group discussions held by the author and his assistant with 300 men and women in Khyber and Kurram agencies between November 2007 and January 2009.
23. Life of Abdurrahman, 1900, Vol. ii.
24. Murock 1958, p. 1., put forth that “The family is social group characterised by common residence, economic co-operation, and reproduction. It includes adults of both sexes, at least two of whom maintain a socially approved sexual relationship and one or more children, own or adopted of the sexually cohabiting adults”. In sociological terms we may say that family, “the primary organisation tends to be ascriptive, particularistic in recruitment of members and functionally diffuse in its aims. It shows strong in-group solidarity and often hostility toward out-groups.” See also, F. W. Riggs, "Agraria and Industria,Toward a Typology of Comparative Administration", in Toward the Comparative Study of Public Administration: Edited by William J. Siffin, Indiana University Press, Indiana, 1959.
25. Murock. G., Social Structure. MacMillan Co New York 1958.
26. New York Times, March 20, 1927.
27. N-WF Enquiry Committee Report.
28. N-WFP Administration Report, 1921, Spain, 1963.
29. N-WFP Administration Report, 1928.
30. Parliamentary Papers, 1901, XLIX, N-WF, Cmd. 496, 72.
31. Radcliff & Brown. Structure and Function in Primitive Society. Cohen and West Ltd, London, 1964.
32. Ramound, Firth, Elements of Social Organisation, Watts & Co, Parket Street, London, 1963.
33. Spain, W. J., The Pathan Borderland. Mouton & Co., Hague 1963.
34. Spain, W.J. The Way of the Pathans. Oxford University Press, Karachi 1962.
35. Trench, C. C., The Frontier Scouts. Jonathan Cape, London 1985.

End Notes: