FATA and the Frontier Crimes Regulation in Pakistan: The Enduring

Policy Brief

5:17

FATA and the Frontier Crimes Regulation

in Pakistan: The Enduring Legacy of British

Colonialism

Harrison Akins

Graduate Research Fellow

Howard H. Baker Jr. Center for Public Policy

University of Tennessee

November 2017

Baker Center Board

Cynthia Baker

Media Consultant

Washington, DC

Sam M. Browder

Retired, Harriman Oil

Patrick Butler

CEO, Assoc. Public Television Stations

Washingtonk, DC

Sarah Keeton Campbell

Attorney, Special Assistant to the Solicitor General and

the Attorney General, State of Tennessee

Nashville, TN

Jimmy G. Cheek

Chancellor, The University of Tennessee, Knoxville

AB Culvahouse Jr.

Attorney, O’Melveny & Myers, LLP

Washington, DC

The Honorable Albert Gore Jr.

Former Vice President of the United States

Former United States Senator

Nashville, TN

Thomas Griscom

Communications Consultant

Former Editor, Chattanooga Times Free Press

Chattanooga, TN

James Haslam II

Chairman and Founder, Pilot Corporation The University

of Tennessee Board of Trustees

Joseph E. Johnson

Former President, University of Tennessee

Fred Marcum

Senior Adviser to Senator Baker

Huntsville, TN

The Honorable George Cranwell Montgomery Former

Ambassador to the Sultanate of Oman

Regina Murray

Knoxville, Tennessee

Lee Riedinger

Vice Cancellor, The University of Tennessee, Knoxville

Don C. Stansberry Jr.

The University of Tennessee Board of Trustees

Huntsville, TN

The Honorable Don Sundquist

Former Governor of Tennessee

Townsend, TN

Baker Center Staff

Matt Murray, PhD

Director

Nissa Dahlin-Brown, EdD

Associate Director

Charles Sims, PhD

Faculty Fellow

Kristia Wiegand, PhD

Faculty Fellow

Jilleah Welch

Research Associate

Jay Cooley

Business Manager

Elizabeth Woody

Office Manager

Kristin England

Information Specialist

William Park, PhD

Director of Undergraduate Programs

Professork, Agricultural and

Resource Economics

About the Baker Center

The Howard H. Baker Jr. Center for

Public Policy is an education and

research center that serves the

University of Tennessee, Knoxville,

and the public. The Baker Center is a

nonpartisan institute devoted to

education and public policy schol-

arship focused on energy and the

environment, global security, and

leadership and governance.

Howard H. Baker Jr. Center for

Public Policy

1640 Cumberland Avenue Knoxville,

TN 37996-3340

bakercenter.utk.edu

865.974.0931

[email protected]

The contents of this report were developed under a grant

from the US Department of Education. However, these

contents do not necessarily represent the policy of the

US Department of Education, and you should not

assume endorsement by the federal government.

Findings and opinions conveyed herein are those of the

authors only and do not necessarily represent an official

position of the Howard H. Baker Jr. Center for Public

Policy or the University of Tennessee.

Baker Center Board

Cynthia Baker

Media Consultant, Washington, DC

Sam M. Browder

Retired, Harriman Oil

Patrick Butler

CEO, Assoc. Public Television Stations

Washington, DC

Sarah Keeton Campbell

Attorney, Special Assistant to the Solicitor General

and the Attorney General, Nashville, TN

Jimmy G. Cheek

Former Chancellor, The University of Tennessee,

Knoxville

AB Culvahouse Jr.

Attorney, O’Melveny & Myers, LLP

Washington, DC

The Honorable Albert Gore Jr.

Former Vice President of The United States

Former United States Senator

Nashville, TN

Thomas Griscom

Communications Consultant

Former Editor, Chattanooga Times Free Press

Chattanooga, TN

James Haslam II

The University of Tennessee Board of Trustees

Joseph E. Johnson

Former President, University of Tennessee

Fred Marcum

Former Senior Advisor to Senator Baker

Huntsville, TN

Amb. George Cranwell Montgomery

Former Ambassador to the Sultanate of Oman

Regina Murray, Knoxville, TN

Lee Riedinger

Vice Chancellor, The University of Tennessee,

Knoxville

Don C. Stansberry Jr.

The University of Tennessee Board of Trustees

Huntsville, TN

The Honorable Don Sundquist

Former Governor of Tennessee

Townsend, TN

Baker Center Staff

Matt Murray, PhD

Director

Katie Cahill, PhD

Associate Director

Charles Sims, PhD

Director, Energy & Environment

Krista Wiegand, PhD

Director, Global Security

Jilleah Welch, PhD

Research Associate

Jay Cooley

Business Manager

Elizabeth Woody

Ofce Manager

William Park, PhD

Director of Undergraduate Programs

Professor, Agricultural and Resource

Economics

About the Baker Center

The Howard H. Baker Jr. Center for

Public Policy is an education and

research center that serves the University

of Tennessee, Knoxville, and the public.

The Baker Center is a nonpartisan

institute devoted to education and public

policy scholarship focused on energy

and the environment, global security, and

leadership and governance.

Howard H. Baker Jr. Center for Public

Policy

1640 Cumberland Avenue

Knoxville, TN 37996-3340

Additional publications available at

http://bakercenter.utk.edu/publications/

Disclaimer

Findings and opinions conveyed

herein are those of the authors only

and do not necessarily represent an

ofcial position of the Howard H.

Baker Jr. Center for Public Policy

or the University of Tennessee.

The Howard H. Baker Jr. Center for Public Policy

FATA and the Frontier Crimes Regulation in Pakistan: The

Enduring Legacy of British Colonialism

Harrison Akins

Graduate Research Fellow

Howard H. Baker Jr. Center for Public Policy

University of Tennessee

In early 2017, hundreds of Pashtun tribesmen gathered in Dera Ismail Khan under

the banner of the organization FATA Siyasi Ittehad (FATA Political Coalition) to protest the

continued enforcement of the Frontier Crimes Regulation (FCR), the colonial-era law that still

governs Pakistan’s Federally Administered Tribal Areas (FATA). Under the archaic FCR, an

innocent individual can be imprisoned for the crimes of their kin, the government can displace

entire villages without compensation, explanation, or warning, and individuals can languish

behind bars for up to three years without any charges being led.

This protest joined countless others in recent years by tribal groups across the region

calling for the end of the law that severely curbs the rights of FATA residents. Nasirullah

Khan Wazir, from South Waziristan Agency and a member of the Pakistan Tehreek-e-Insaaf

political party, denounced the law, stating “FCR is a black law dating back to the colonial era…

It is inhuman and tribesmen have consistently been rejecting it. Tribesmen no longer want to

live under its tyranny.”

Many academics, activists, and human rights groups have similarly

denounced FCR as a repressive and outdated law that undermines democracy and basic civil

rights. As FATA struggles to re-build following years of conict between the Taliban and

Pakistani military, this law has been pointed to as a hindrance for FATA’s development. In

response, the government has recently introduced a plan to repeal the law. While many within the

violence-plagued region have been calling for an end to the FCR and the administrative isolation

of FATA, this transition is not without controversy. A number of groups oppose the proposed

reforms, threatening to throw up a roadblock in its repeal.

Many questions emerge in light of the current debate related to why the FCR continues to

exist, what has been its broader impact, and, given its unpopularity, why it is proving divisive to

repeal. To address these questions, this Policy Brief will rst give the history of the FCR—why

the British Raj initially implemented the law and why it was maintained following the creation

of Pakistan in 1947—followed by a discussion of how it functions and impacts the security

environment in FATA. It will nish with an overview of the government’s plan for reform and

the controversies that surround it.

“No Patchwork Scheme”: Lord Curzon and the Indian Frontier

In early 1899, fresh from appointments as Under-Secretary of State for India and Under-

Secretary of State for Foreign Affairs in London, George Nathaniel Curzon, the 1

Marquess

Curzon of Kedleston, was installed as the Viceroy and Governor General of India, the senior

ranking ofcial in the crown jewel of the British Empire. He immediately faced a problem on

Zukqar Ali, “Protest rally: Tribesmen call for FATA’s merger,” The Tribune (Pakistan), 5 January 2017.

The Howard H. Baker Jr. Center for Public Policy

the northwest frontier of the British Raj—how to effectively deal with the rebellious Pashtun

tribes comprising the border region between the British-controlled Punjab and the Kingdom

of Afghanistan. With the capital of British administration nestled in the port of Calcutta on the

Ganges Delta over 2,000 kilometers away, these localized tribal revolts and raids, the most recent

of which occurred in the year prior to Lord Curzon’s appointment, served no real threat to British

rule in the Subcontinent.

However, these were the days of the Great Game, a chess match between Britain and

the expansionist Russian Empire over position and inuence among the tribes, mountains,

and steppe of Central Asia. Any unruliness in these border regions, it was feared, could be an

opportunistic invitation or even a plot by the Russians to sow political discord within the British

domain. In a 1904 speech given in Guildhall, London, Lord Curzon argued that with “a land

frontier 5700 miles in length, peopled by hundreds of different tribes…a single outbreak at a

single point may set entire sections of that frontier ablaze. Then, beyond it…are the mufed

gure of great European Powers, advancing nearer and nearer, and sometimes nding in these

conditions temptations to action that is not in strict accordance with the interests which we are

bound to defend.”

Therefore, the machinations of these Pashtun tribes ensconced among the

towering peaks of the Hindu Kush were a priority for the British Indian government.

This was of particular concern for the newly appointed Lord Curzon who in the previous

decade had conducted extensive tours of Russia, Central Asia, and Persia. During his travels, he

developed a grave mistrust of Russian intentions in the region outlined in two books, Russia in

Central Asia and Persia and the Persia Question. In addition to a rich historical, political, and

ethnographic study of the regions’ peoples, these books warn of the threat that he saw Russia

posing to India, the British Empire’s most valuable colony.

Lord Curzon wrote in 1901, “As a

student of Russian aspirations and methods for fteen years, I assert with condence—what I

do not think any of her own statesmen would deny—that her ultimate ambition is the dominion

of Asia…If Russia is entitled to these ambitions, still more is Britain entitled, nay compelled, to

defend that which she has won.”

Given this growing territorial threat and the inadvisability of outright war with the vast

Russian Imperial armies, Lord Curzon pushed for the creation of defensive buffer regions along

India’s borders to stymie Russian advancement and inuence. The British adopted a three-tiered

approach to India’s security, referred to by Lord Curzon as the “threefold frontier.” The rst

geographical frontier was the boundary of the Subcontinent over which the British Raj was able

to exert direct control. The second zone consisted of the border region between the rst frontier’s

border and a demarcated international border that the Raj laid territorial claim to but were unable

to impose its laws or political control from Calcutta (and later New Delhi). The third frontier lay

beyond India’s international borders, consisting of protectorates, such as Afghanistan, Nepal,

Tibet, and Sikkim, which remained independent kingdoms but were cemented to British interests

through treaty agreements.

Lord Curzon in India: Being a Selection From His Speeches as Viceroy & Governor-General of India, 1898-1905

(London: Macmillan and Co., 1906), pg. 37.

See George N. Curzon, Russia in Central Asia in 1889: And the Anglo-Russian Question (London: Longmans,

Green & Co., 1889); George N. Curzon, Persia and the Persian Question (London: Longmans, Green & Co., 1892).

Peter Fleming, Bayonets to Lhasa: The British Invasion of Tibet (New York: Harper, 1961), pg. 23.

The Howard H. Baker Jr. Center for Public Policy

This left the lingering question of how to effectively deal with the tribes in the northwest

frontier of the second frontier zone, a problem that bafed various rulers dwelling in Delhi,

Agra, Lahore, and Calcutta for centuries. These Pashtun tribes lived outside the control of any

government institutions according to their own tribal customs, as a result of the difculty of the

terrain and the erceness with which the tribes fought invading armies, foremost among them the

Wazir and Mehsud tribes in Waziristan.

Countless attempts throughout history showed the futility of direct military intervention

as a means of pacifying the region—the Mughal Emperor Akbar the Great saw his armies

destroyed, with 8,000 lives lost, in 1586 to the Yusufzai of the Peshawar Valley; and Akbar’s

grandson Aurangzeb dispatched an army to subdue the Afridi tribe which controlled the vital

Khyber Pass, an operation which cost the lives of 10,000 solders with a further 20,000 captured.

Britain herself saw the high costs inicted by the Pashtun tribes of eastern Afghanistan when

the entire procession of the Grand Army of the Indus, counting 18,000 souls (including 12,000

camp followers), was lost in 1842 following its hasty retreat from Kabul; save for one man, Dr.

William Brydon, who staggered half-dead into the British fort at Jalalabad to announce, when

questioned where the remainder of the army was, “I am the army.”

In retaliation, a British army

of 14,000 men, known as the ‘Army of Retribution’, descended on Kabul from forts at Jalalabad

and Kandahar, defeated a force of 15,000 tribesmen, and burned large sections of the city,

including the historic covered bazaar. Following this costly campaign of revenge, which included

many acts of savage violence against villages and their civilian populations along the march, the

British exited Afghanistan.

Understanding the patterns of history, Lord Curzon once observed, “No patchwork

scheme—and all our present recent schemes, blockade, allowances etc., are mere patchwork—

will settle the Waziristan problem. Not until the military steam-roller has passed over the country

from end to end, will there be peace. But I do not want to be the person to start that machine.”

With the difculty of direct control, he saw the need for a new approach.

In 1901, Lord Curzon created out of the old Punjab Province a new North-West Frontier

Province (NWFP) consisting of the tribal buffer region along the Durand Line, the international

border between British India and the Kingdom of Afghanistan surveyed and established in 1893

by Colonel Algernon Durand. The administrative approach he adopted for his new province was

one of indirect rule, placing the tribal residents of the NWFP under the new legal framework of

the Frontier Crimes Regulation (FCR). The FCR maintained the internal autonomy and customs

of the Pashtun tribes and operated largely through legally recognizing the authority of the tribal

malik (elder) and aspects of the code of honor known as Pashtunwali (the way of the Pashtun),

which emphasized honor, revenge, and hospitality as a means of maintaining social order.

On April 26, 1902, Lord Curzon traveled north to Peshawar, the capital of the new

province, and met with a durbar (court) comprised of some 3,000 tribal leaders to give a

Akbar Ahmed, The Thistle and the Drone: How America’s War on Terror Became a Global War on Tribal Islam

(Brookings Institution Press, 2013), pg. 155.

Evelyn Howell, Mizh: A Monograph on Government’s Relations with the Mahsud Tribe (Oxford University Press,

1979), pg. 35.

The Howard H. Baker Jr. Center for Public Policy

complete account of the new British frontier policy. He opened his address by assuring, and

warning, them:

Now the great desire of the trans-border tribesman is, I take it, to maintain his

religion and his independence. The British Government have not the smallest

desire to interfere with either…The policy of the Government of India towards

the trans-border men is very simple, and it is this. We have no wish to seize your

territory or interfere with your independence. If you go on worrying and raiding

and attacking, there comes a time when we say, This thing must be put an end to:

and if the tribes will not help us do it, then we must do it ourselves. The matter is

thus almost entirely in your own hands. You are the keepers of your own house.

We are ready enough to leave you in possession. But if you dart out from behind

the shelter of your door to harass and pillage and slay, then you must not be

surprised if we return quickly and batter the door in.

Lord Curzon also guaranteed the British would recognize the existing political authority

within the tribes, however the various tribes dened it, and deal with this leadership directly,

promising “tribal allowances for keeping open the roads and passes, such as the Khyber and

Kohat Passes and the Chitral Road, for the maintenance of peace and tranquility, and for the

punishment of crime.”

“Upon such men that our security rests”: The Political Agent and Tribal Administration

Society in the tribal areas largely operated through the tribe’s three pillars of authority:

the lineage-based authority of the malik operating through the council of elders (jirga), the

religious-based authority of the mullah, and the legal-based authority of the Political Agent. It

was the often-uid relationship and precarious balance between these three pillars of authority

that allowed for the maintenance of law and order within a society burdened with rivalries and

vendettas.

In particular, much of the internal conict derived from the traditionally subordinate

position of the mullah to the elders under the FCR, as the mullah did not have an ofcial voice

within the jirga, being outside the genealogical charter, and often dependent on the elders for

their position within the mosque or madrassa. Despite the self-consciously Islamic frame that

the tribes used, the mullah’s inuence ebbed and owed with the shifting political dynamics and

his personal ability to draw followers to his cause, often in opposition to the British-sanctioned

position of the elders and British development projects that further interposed “kar” ways into

the Tribal Areas.

The conict between the mullah and malik could lead to the outbreak of violence. In one

example of this, when Mir Badshah, a Mehsud elder in South Waziristan Agency during British

rule, opened a school, a local mullah gathered a crowd to burn it down as a symbol of British

imperialism. Mir Badshah defended the school and shooting erupted between the two opposing

Lord Curzon in India, pg. 422.

Lord Curzon in India, pg. 423.

See Akbar S. Ahmed, Religion and Politics in Muslim Society: Order and Conict in Pakistan (Cambridge

University Press, 1983).

The Howard H. Baker Jr. Center for Public Policy

sides, with two people killed in the exchange of gunre. This same Mir Badshah, when criticized

by Mullah Fazal Din in 1947 over his battle tactics in Kashmir, dismissively replied that matters

of war and politics should be left to the elders as the mullah’s place was in the mosque leading

prayers.

While the British frontier policy under the FCR recognized the authority of tribal

leadership and their internal autonomy, the key to tribal administration along the frontier, in Lord

Curzon’s eyes, was the Political Agent (PA), a gure who, much like his tribal counterparts, is

cloaked in equal parts oriental romanticism and historical caricature.

The position of PA was originally created for the ve tribal agencies (there are now

seven) established along the Durand Line in the late 1890s. His orders were to represent British

interests among the tribes under his charge. Under the FCR of 1901, the PA was maintained,

reporting directly to the governor general himself, and granted almost unlimited legal authority

within his agency, simultaneously fullling the roles of chief of police, judge, and executioner.

Given the extent of his authority, the tribes would often refer to the PA as Badshah (king).

The

immense responsibility laid upon the PA within a difcult working environment led to great

emphasis on the necessary characteristics and selection of the men that served in the frontier.

Lord Curzon stated, “A good Political is a type of ofcer difcult to train. Indeed, training by

itself will never produce him, for there are required in addition qualities of tact and exibility,

of moral bre and gentlemanly bearing, which are instinct rather than acquisition…It is upon

such men that our security rests, not on the number of battalions we put there.”

Indeed, a

number PAs lost their lives in the line of duty in the Tribal Areas, with ve being killed in South

Waziristan Agency alone during the half century of British rule.

Yet, as a result of the limitations of government authority in the frontier, the PA was

forced to work through the tribe’s pillars to promote the government’s interests and see any

results. In the Tribal Areas, it is famously said that the authority of the British Raj only existed

along the main roads and a hundred yards to each side. Beyond this lay the land of riwaj, or tribal

custom. Because of the constraints on his administrative authority and ability to take assertive

and offensive actions, the PA has been referred to as “half-ambassador and half-governor” in

his interactions with the tribes.

A former PA in Waziristan observed, “Dissatisfaction with the

PA, or his junior eld ofcers, is expressed by sniping, explosions on government property, and

even kidnapping.”

To capture the perpetrators of such acts, the PA would rely upon the threat

of his wide-ranging powers, especially in imprisoning an entire clan for the actions of one of its

members, as a show of force. A Mehsud proverb states, “The Political Agent should brandish

his sword but not use it.”

The PA’s authority was backed by the creation of a paramilitary

organization comprised of local tribesmen known as Scouts. Often the PA, however, would

Ahmed, The Thistle and the Drone, pg. 51.

Ahmed, The Thistle and the Drone, pg. 60.

Christian Tripodi, Edge of Empire: The British Political Ofcer and Tribal Administration on the North-West

Frontier, 1877-1947 (Surrey: Ashgate, 2011), pg. 26.

James W. Spain, The Way of the Pathans (London: R. Hale, 1962), pg. 25.

Ahmed, Religion and Politics in Muslim Society, pg. 36.

O.K. Afridi, Mahsud Monograph, Tribal Affairs Research Cell, Home and Tribal Affairs Department, Government

of North-West Frontier Province, 1980, pg. 49.

The Howard H. Baker Jr. Center for Public Policy

ultimately rely upon negotiations with tribal maliks, negotiations reliant upon Pashtunwali and

heavy with references to honor and justice, to produce the culprit.

Despite the existence of the FCR on the Frontier and the power of the PA, which in the

ideal were able to project some measure of stability, the outbreak of violence still prompted the

British to pair its tribal administration with shows of military force. In the 1930s, for example,

the British government had more troops stationed within Waziristan than the remainder of the

Indian Subcontinent.

The geographic and administrative isolation of the Tribal Areas, local

attacks against the British imperial presence, and absence of dedicated resources all contributed

to the lack of development within the region, with a striking dearth of schools, hospitals, and

infrastructure by the end of British rule. Sir Evelyn Howell, a British political ofcer serving in

Waziristan during the 1920s, summed up the British colonial efforts in the Tribal Areas: “What a

record of futility it all is!”

“Our Muslim Brethren”: The Tribal Areas in Pakistan

At the creation of Pakistan in 1947, Muhammad Ali Jinnah, the Quaid-e-Azam (Great

Leader) who carved a new nation out of the map of British India, was under tremendous

pressure. In the preceding years, he had been tirelessly crossing the Subcontinent to garner

support for a new Muslim state built upon the majority-Muslim provinces of the Subcontinent.

Following his success, there was little time for celebration as he was tasked with fostering a

cohesive national identity despite the new state’s numerous ethnic, linguistic, and religious

divides while simultaneously dealing with tensions with India over Kashmir that would

quickly lead to war, the settlement of millions of refugees, and the creation of new government

bureaucracy and administrative structures; a Herculean undertaking for any single man to bear,

let alone one stricken with tuberculosis that would claim his life the following year.

In regards to the Tribal Areas, Jinnah respected the internal autonomy and customs of the

tribes and made the unprecedented move of reversing the British policy of “forward defense”

by withdrawing the military garrisons and all regular troops. With the withdrawal of the foreign

powers, he no longer saw it necessary to maintain a military presence along the border, seeing

it as an unnecessary provocation, and entrusted the tribes to deal with cross-border challenges.

In 1948, Jinnah traveled north to Peshawar and met with a grand jirga from the Tribal Areas,

assuring them:

Keeping in view your loyalty, help, assurances and declarations we ordered, as

you know, the withdrawal of troops from Waziristan as a concrete and denite

gesture on our part—that we treat you with absolute condence and trust you

as our Muslim brethren…Pakistan has no desire to unduly interfere with your

internal freedom…We want to put you on your legs as self-respecting citizens

who have the opportunities of fully developing and producing what is best in you

and your land…I agree with you that education is absolutely essential, and I am

glad that you appreciate the value of it. It will certainly be my constant solicitude

and indeed that of my Government to try to help you to educate your children

Ahmed, The Thistle and the Drone, pg. 59.

Howell, Mizh, pg. 95.

The Howard H. Baker Jr. Center for Public Policy

and with your cooperation and help we may very soon succeed in making a great

progress in this direction.

In particular, the new state of Pakistan was concerned with relations with Afghanistan,

which challenged Pakistani membership to the United Nations given its claim to the Pashtun-

populated Tribal Areas and North-West Frontier Province, declaring the Durand Line invalid.

Afghanistan sought to take advantage of Pakistan’s post-independence instability and sow

discord in the region, allying with India in the process. Though the popularity of the creation of

a “Pashtunistan” within the region is debatable, it was a potent enough of a threat to convince

Pakistani leadership, ever conscious of protecting their newly-established borders, to maintain

the status quo in FATA so as not to disrupt the precarious balance within the region and avoid

pushing the Pashtun tribes further into the arms of their ethnic kin across the international border.

Therefore, Jinnah’s successors kept the FCR in place, despite its anti-democratic

provisions, as a vehicle to suppress lawlessness and unrest, which rival powers could exploit to

their advantage. This law kept the region under direct rule from the Pakistani federal government

and administratively distinct from the broader North-West Frontier Province, which possessed

local government and a provincial parliament. Much like under British rule, the purpose of the

FCR within Pakistan was simply to protect the interests of the state rather than ensuring any

notion of justice or civil rights for FATA residents, essentially creating second-class citizens. This

arrangement also nurtured loyalty to the Pakistani state among the maliks, whose position and

privileges were institutionalized under the FCR.

The FCR in Pakistan maintained the position of the Political Agent as the representative

of the federal government along with his extensive powers and denied FATA residents the basic

rights possessed by other Pakistanis—appeal, wakeel (lawyer), and daleel (argument)—the right

to appeal a conviction, the right to legal representation, and the right to present evidence in order

to argue your case. It also allows for collective punishment against a culprit’s entire clan, tribe, or

village under the “collective responsibility clause”, permitting the authorities to hold individuals

for up to three years without charges. Additionally, legal punishments are decided by unelected

jirgas without trial by jury with no recourse for appeal. The government can similarly seize

private property at their discretion. It also limits access to the region from outsiders. Pakistan

added to the FCR that residents can be arrested or ordered to be handed over to the government

by tribal elders without needing to specify a crime, an order which a failure to comply with can

make the elder liable for punishment. Universal suffrage was only granted to FATA residents in

1997, prior to which only recognized maliks were permitted to cast votes. Yet, political parties

were not legally allowed to campaign in the region until 2013.

Ahmed, The Thistle and the Drone, pg. 63

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Pakistan’s Federally Administered Tribal Areas (FATA) in dark grey and Khyber Pakhtunkhwa Province (formerly

North-West Frontier Province) in light grey. Source: Wikimedia.org

The political position of FATA within Pakistan has resulted in chronic underdevelopment

as access and economic opportunities are severely restricted. The reported literacy rates among

the seven tribal agencies vary between 26.77% (North Waziristan) and 57.2% (Khyber) for men

and 1.47% (North Waziristan) and 14.4% (Kurram) for women.

Many within Pakistan argue

that the FCR has allowed for the spread of corruption given the privileges and powers granted to

the maliks, with little benet trickling down to the broader population and efforts at development

being stymied. This inequality created much resentment between the privileged elders and the

“political have nots.”

Reecting on his time as Political Agent in South Waziristan Agency from

1978-1980, anthropologist Akbar Ahmed writes:

I found tribal elders entrenched in their status and privilege because of their

access to the PA [political agent], which they were reluctant to share with the rest

of the tribe. Furthermore, a younger generation—called the kashar (the youth)

as opposed to the mashar (the elder)—had emerged, demanding a greater voice

Multiple Indicator Cluster Survey (MICS): Federally Administered Tribal Area (FATA) Pakistan, Planning &

Development Department, FATA Secretariat, 2009, pgs. 26-27.

Akbar S. Ahmed, Pukhtun Economy and Society: Traditional Structure and Economic Development in a Tribal

Society (London: Routledge, 1980), pg. 144.

The Howard H. Baker Jr. Center for Public Policy

in the agency. Calling for change, the kashar argued that the mashar were selsh

and corrupt, nothing more than stooges of the government who exaggerated the

role of the genealogical charter and Pukhtunwali [the Pashtun code of honor] to

further their own interests…Since Waziristan, like the rest of the Tribal Areas,

elected its member of Pakistan’s national assembly through votes cast by the

recognized tribal maliks [elders], they could manipulate the extraordinary powers

this conferred on them for personal gain. The kashar agitated for elections to

be held on the basis of one man, one vote as in the rest of the country. Also of

great concern was the lack of educational and medical facilities, which were

appalling and, compared with the rest of the country, unacceptable. Even roads

and electricity barely existed and then only to connect one government post to

another.

Many within Pakistan have long challenged the FCR as an outdated law that violates both

the civil and human rights of the residents of FATA. Dr. Faqir Hussain, Secretary of the Law and

Justice Commission of Pakistan, stated at an October 2004 consultation on the FCR organized by

the Human Rights Commissioner of Pakistan, “Judging by the standards of international human

rights principles, the norms practiced in civilized states and the fundamental rights guaranteed

in the Constitution of Pakistan, the FCR failed to meet the test of compatibility.”

The Pakistani

courts have come to the same conclusion concerning the FCR. In the 1957 ruling in Toti Khan v.

District Magistrate Sibi and Ziarat, the courts found the use of unelected jirgas for criminal cases

violated the 1956 Constitution’s article on equal protection under the law.

Previously, the 1954

ruling of the court in Khan Abdul Akbar Khan v. Deputy Commissioner Peshawar found a similar

rational in challenge to the FCR.

In explanation of the court’s ruling, Justice Kayani stated

that the FCR was effectively “racial discrimination and is open to criticism as discrimination

between a Negro and a white man.”

In 1979, the Shariat Bench of the Balochistan High Court

found the FCR and its discriminatory practices to be contrary to the teachings of Islam, arguing

that “Islam invalidates discriminations on the basis of caste, creed, colour, social status, place of

birth or of residence…In particular, ‘Justice’ as far as it concerns the decision of cases, both of

civil and criminal nature, has to be administered on the basis of equality with all religiousness…

Accordingly, all discriminatory law are against the injunctions of Islam.”

In 2008, the Pakistani

Prime Minister Yousaf Raza Gillani stated his intention to abolish the “obsolete” law, seeing it as

a hindrance to economic, social, and political reform.

The turmoil of Pakistani national politics

over the past sixty years and the prioritization of security along with the entrenched interests of

Ahmed, The Thistle and the Drone, pg. 52.

FCR: A bad law nobody can defend, Human Rights Commission of Pakistan, Peshawar Chapter, July 2005, pg. 3.

Toti Khan v. District Magistrate Sibi and Ziarat (PLD 1957 W.P. Quetta 1).

Khan Abdul Akbar Khan v. Deputy Commissioner Peshawar (PLD 1954 Peshawar 100).

Shaheen Sardar Ali and Javaid Rehman, Indigenous Peoples and Ethnic Minorities of Pakistan: Constitutional and

Legal Perspectives (Surrey: Curzon, 2001), pg. 53.

Tilmann J. Roder and Naveed A. Shinwari, “Pakistan: Jirgas Dispensing Justice without State Control,” in

Non-State Justice Institutions and the Law: Decision-Making at the Interface of Tradition, Religion and the State,

Matthias Kotter, Tilmann J. Roder, Gunnar Folke Schuppert, and Rudiger Wolfrum, eds. (Basingstoke: Palgrave

Macmillan, 2015), pg. 44.

Abubakar Siddique, “Pakistan: New Government Announces Major Reforms in Tribal Areas,” Radio Free Europe,

3 April 2008.

The Howard H. Baker Jr. Center for Public Policy

those who benet from the status quo, however, have superseded these issues, keeping the FCR

rmly in place.

Regional and international politics have time and again spilled into FATA and helped

to shape its political dynamics, exacerbating local conicts engendered by the FCR. This

isolated and far away region became a focal point for foreign powers as the Soviets interjected

themselves into the Afghanistan game of thrones. Beginning in the early 1980s, Pakistan and the

United States, through the ISI and CIA, relied upon religious rhetoric and support of religious

institutions in the region as a counter-narrative and recruiting effort in the struggle against the

Soviet military across the Durand Line. The mullahs were ascendant in tribal politics as they now

had the money, the guns, and the political legitimacy to lead the ght. They were thus able to

bypass the traditional checks by the other pillars of authority under the FCR.

Following the American invasion of Afghanistan in 2001, Pakistan, under pressure from

the United States, dispatched its military forces to FATA, the rst military presence since Jinnah

removed the garrisons, to catch militants eeing across the Durand Line, an international border

that only exists on maps for the local Pashtun tribes. The military presence, along with the

increasing number of U.S. drone strikes after 2004, was a catalyst for the violence committed

by various Pakistani Taliban groups, largely emerging behind the very mullahs disadvantaged

by the FCR. Many of their targets were the recognized tribal elders, with 800 elders killed in

FATA by 2012 in increasingly brazen attacks.

The PAs, whose power was already diminished

by the presence of the military as local tribesmen turned to the local brigade commanders as the

source of political authority, were similarly in danger with many forced to live and work outside

their agencies. As the tempo of violence increased in FATA, local residents were similarly

forced to ee their homes. In this chaos, the foundational structures of the FCR were devastated,

underlying the need for a new approach to governance in the region.

“Go, FCR, Go”: The Debate on the Repeal of the FCR

In 2016, the Pakistani government began working to re-settle FATA residents displaced

from the conict, a process largely completed by the end of the year. As people returned to their

homes after over a decade of violence with the Taliban, they faced many challenges to rebuild

their lives. Pakistani journalist Rehmat Mehsud, upon returning to his homeland of South

Waziristan Agency in September 2017, likewise saw the impact of the over decade long war with

the Taliban—“South Waziristan’s infrastructure has been ravaged by war. People’s houses are

hardly t to live in after years of incessant shelling…The problems don’t end here…The area is

still scattered with hidden or disguised Improvised Explosive Devices (IEDs) which have killed

or maimed scores of children.”

The government similarly faced the challenge of building trust

between the government and displaced persons and to bring FATA into the mainstream as a

means of preventing future unrest and conict. Government efforts included compensation for

homes destroyed and an increase in development spending for the region.

Yet, as many human rights activists, local tribesmen, and even the superior judiciary of

Pakistan have long pointed out, the greatest hindrance towards integrating FATA into Pakistan

Khalid Aziz, “Conict & Fata Institutions,” Dawn (Pakistan), 16 March 2012.

Rehmat Mehsud, “Return to South Waziristan,” Daily Times (Pakistan), 26 September 2017.

The Howard H. Baker Jr. Center for Public Policy

is the structural constraint of the FCR. There have been previous attempts at amending the FCR

within the current framework of the law. In 1997, universal suffrage was nally extended to

FATA. In 2011, President Asif Ali Zardari amended the FCR through presidential order, which

placed limits on the collective action clause and the powers of the political agent. However, the

underlying framework of the law still remained, leading to a string of protests under the “Go,

FCR, Go” movement calling for the repeal of the British-era law.

In November 2015, former Prime Minister Nawaz Sharif created the FATA Reforms

Committee, headed by Adviser to the Prime Minister on Foreign Affairs Sartaj Aziz, in order to

provide recommendations for reforming the FATA’s administration and political status within the

nation. Nine months later, the committee released its report that outlined a ve-year transition

period to repeal the FCR and merge FATA with the Khyber Pakhthunkhwa (KP) Province,

placing FATA residents under the regular judicial system of Pakistan with full legal and civil

rights guaranteed under the constitution. The FCR would be replaced by the Riwaj Act that

would maintain the jirga system for local dispute resolution but with elected elders comprising

the council. This plan would also ensure additional funds for development projects and allow for

an increase in security forces in FATA to assist with security issues until the integration process is

complete. In a bid to restrict uncontrolled entry into the region that has been exploited by Afghan

militants, Pakistan is strengthening border security with the construction of fencing along the

2,600 border with Afghanistan supported by 420 small forts. The Pakistani federal cabinet

ofcially approved this plan in March 2017.

While there has largely been consensus on the need to repeal the FCR, the process

to do so has not been without controversy. Local tribesmen complained that this committee

did not include local representatives from FATA, creating resentment among the tribesmen

towards government efforts to repeal the FCR who feel the committee should have consulted

more with tribal representatives. Iqbal Afridi, the general secretary of the All FATA Political

Parties Alliance, stated, “FATA is not a laboratory where you keep carrying on experiments to

know what kinds of reforms are working.”

In March 2017, a group of tribal elders expressed

opposition to the plan put forth by the government, similarly arguing that it is an imposition from

the government without referendum or consultation with the local population.

The leadership

of the JUI-F and Pakhtunkhwa Milli Awami Political Parties have also been against the merger

with KP Province, given their entrenched electoral interests and history of electoral success

within FATA that a merger with KP would threaten. They have advocated for FATA being given

the status of a separate province. The JUI-F chief, Maulana Fazlur Rehman, stated in early

November 2017, “Outsiders should not be given the right to decide the fate of tribal people. I am

of the rm opinion that a referendum should be held to decide the future status of FATA instead

of merging it with KP.”

The All FATA Political Parties Alliance has similarly expressed doubt

about the Riwaj Act, fearing that it could become simply another version of the discriminatory

FCR as it maintains the jirga system. This group is also pushing for an expedited merger that

Rehmat Mehsud, “Tribesmen press for merger of FATA with KP,” News Lens Pakistan, 12 August 2016.

Abuzar Afridi, “Tribesmen oppose FATA merger plan,” The Express Tribune (Pakistan), 6 March 2017.

Rehmat Mehsud, “Referendum should decide FATA’s fate: Fazlur Rehmen,” Daily Times (Pakistan), 5 November

2017.

The Howard H. Baker Jr. Center for Public Policy

would allow FATA residents to elect representative the KP Provincial Assembly in the 2018

elections.

What all parties can agree on is that the FCR must go. In order to move beyond potential

gridlock over disagreements on how it is repeals, it is necessary that the government work

closely with affected communities within FATA as partners within the period of transition. This

will allow them to effectively gauge the potential impact of proposed reforms and give the plans

greater legitimacy among the population, helping to secure a lasting peace. Failure to do so

will work against the government’s goal of bringing stability to the region by building greater

resentment and opposition from segments of the population toward the government and its plan

for reform.

The interests of the Tribal Areas have historically been neglected with decisions

made from distant capitals for broader political or security concerns. This focus has led to

the perpetuation of the status quo under the FCR and the disregard for local political voices

and desires. Many local FATA residents today similarly feel as though their voices have been

neglected by the Pakistani government during the formulation of plans for reform. The repeal

of the FCR needs to therefore be paired with a re-start in Pakistan’s working relationship with

this long-suffering region to integrate them into the nation as citizens with their full civil rights.

By working closely with the local communities in both shaping and implementing reforms, the

government will be abiding by the vision of the Quaid-e-Azam who assured the tribesmen at

Pakistan’s founding: “We want to put you on your legs as self-respecting citizens who have the

opportunities of fully developing and producing what is best in you and your land.”

“Fata alliance fears Riwaj Act to prove another FCR,” Dawn (Pakistan), 5 March 2017.

Ahmed, The Thistle and the Drone, pg. 63