NATIONAL MANAGEMENT COLLEGE, LAHORESENIOR MANAGEMENT WING

12TH SENIOR MANAGEMENT COURSE

INDIVIDUAL RESEARCH PAPER“Tribal Areas Governance -

colonial legacies,current challenges and the way forward”

BYTaimoor Ali Khan PSP

A paper submitted to the Faculty of the National ManagementCollege, Lahore in partial fulfillment of the requirementsof the 12th Senior Management Course.The contents of this paper are the end product of my ownefforts and research and reflect my own personal views andare not necessarily endorsed by the College.

Signature:_______________

Date:

Sponsor DS:MR. SHER AFGAN KHAN

PREFACEFollowing the seismic events of 9/11, FATA has attractedlots of academic attention both internationally and withinPakistan. This paper is an attempt to place the governancesystem of FATA in perspectives of history and the normativeand social organization of the Pakhtuns inhabiting FATA andsuggests a feasible reform trajectory suitable to theevolving realities as well as the constitutional andinternational norms that may be followed to transform theway the areas are governed. My years of service in theregions adjoining FATA and occasional role in traditionaldispute resolution have been of value in analysing thegovernance issues in FATA. The insight I developed incourse of my experience of working as an adviser with the UNin nearly 16 countries, especially in jurisdictions withtraditional justice has also been of help in charting apossible reform trajectory for FATA.

It would not have been possible for me to write thisresearch paper without the able guidance, support andencouragement of my faculty advisor, Mr. Sher Afghan Khan.His diverse knowledge and deep understanding of this complexsubject provided me an opportunity to critically explore thevarious dimensions of the subject. Profoundest gratitude isdue to him for allowing me flexibility as to the size of thepaper that was of great help in expatiating what I intendedto say about the topic.

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Acknowledgement is due to Dr. Sikandar Hayat, who groundedus in research methodology and the Ms. Arifa Suboohi, ChiefInstructor, who is a constant reminder of hard work,dedication and discipline. I am also grateful to themanagement of National Management College, Senior ManagementWing, Lahore, for providing me the enabling environment tocarry out this research in a professional manner. I wouldalso like to express my special thanks to the efforts put inby the staff at the library of NMC and SMC Wing. I am alsothankful to the information technology staff at the SMC fortheir assistance in bringing this paper to its currentshape.

EXECUTIVE SUMMARY

The system of governance and laws in the FederallyAdministered Tribal Areas (FATA) are based on the reality ofthe lives of the people and their customs. Thiscontroversial territory, where cultural precedents wereempowered by the colonizers whose main concern was to

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maintain the balance of power, is marred by low literacyrates and extreme poverty that contributes to a ‘wild west’atmosphere, including the proliferation of smuggling andother illegal trade. In recent years, the rise of militancyand military interventions have impacted the alreadycorroding power structure in FATA siginificantly bringingthe debate for reform of governance in FATA in focus.

This paper, based on extensive historical and contemporaryqualitative research using a combination of chronological,descriptive and analytical methods by making use of thewritten material available on the tribal areas of Pakistan,supplemented by in-depth interviews of practitioners oftribal administration and residents of FATA, discusses thehistorical background and provides a short overview of theadministrative, judicial, political and socio-economicaspects of FATA. Exploring the factual position of changinggovernance conditions and issues in FATA, this paper,critically examining the structure of governance, especiallyFCR in backdrop of its colonial origins, the changingenvironment, and an assessment the reforms alreadyintroduced by the government, with focus on the southernagencies, attempts to find the linkages of various variablesimpacting conditions of governance in FATA for possibleresolution of governance issues in the tribal areas ofPakistan. In assessing the underlying causes of thegovernance issues in backdrop of an evolving socio-economicsituation in FATA, this paper suggests a significant changeto the FATA’s status quo as an essential and effectivemeasure. In light of the collapse of the antiquated systemof tribal governance in FATA, this analysis maps severalpossible transition paths for governance reform in both thetribal and settled regions, and argues for an incrementalapproach that minimizes risks to political stability.

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GLOSSARY OF TERMS & ABBREVIATIONS

APA Assistant Political Agent.Durand Line The Afghan-Pakistan border.PA Political Agent, a government office, used by

both the British and the Pakistani governments, to oversee and administer tribalagencies or political districts.

FDA FATA Development Authority.FATA Federally Administered Tribal Areas.FC Frontier Corps.FCR Frontier Crimes Regulations.FS FATA Secretariat.FR Frontier Regions.KP Khyber Pakhtoonkhawa.Jirga A council of tribal elders. A principle of

Pakhtunwali; the requirement to settle tribalconcerns through a democratic forum of Pashtun adult males.

Lashkar Tribal paramilitary militia.Loya Jirga The supreme Jirga.Lungi Similar to a Malik, but the title is not hereditary. Malik A tribal elder given some authority to make

decisions within the Quom; the title is hereditary and would be passed on from generation to generation.

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Mujahideen An Islamic resistance fighter engaged in jihad.

Mullah A Muslim religious leader; head of a mosque.Nang Honor, obtained through the observance and

adherence to Pakhtunwali.NATO North Atlantic Treaty Organization.Nikat Tribal custom that dictates rewards and

punishments based on an individual’s hereditary standing within the tribe.

ISAF International Security Assistance Force.IDPs Internally Displaced People.ISI Inter-Service Intelligence.Qalang Rents or land taxes paid to the State.Riwaj A principle of Pashtunwali; places

accountability on the tribe rather than the individual.

TTP Tehrik-i-Taliban Pakistan.WOT War on Terror.

CONTENTSPrefaceExecutive SummaryGlossary of Terms and AbbreviationsINTRODUCTION..............................................3Statement of Problem.....................................5Methods................................................5

Significance and Scope...................................5Limitations............................................6

Review of the Literature.................................6Organization of the Paper................................8SECTION I - THE COLONIAL LEGACY........................9

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Social Organization......................................9Historic Context of the Governance System in FATA.......13

SECTION II - FATA AFTER INDEPENDENCE.....................15Constitutional status of Federally Administered Tribal Areas (FATA)............................................17Administrative Structure................................17The Maliki System.......................................19Frontier Crimes Regulation – a critical evaluation......20Section III - EVOLVING SOCIO-ECONOMIC LANDSCAPE AND POWER STRUCTURESEmpowerment of the Mulla................................25Effects of Militancy....................................26Impact of Military Operations...........................27Criminalization of Political Economy....................28Erosion of traditional power points.....................28Culture of Rent-seeking.................................29Emerging middle class...................................30SECTION IV - REFORM OF THE TRIBAL AREAS GOVERNANCE.. .31CONCLUSION AND THE FUTURE.............................36

INTRODUCTIONSpread over an area of 27,220 sq km,1 which is approximately3.2% of the total area of Pakistan, with more than one-thirdof the area is covered by barreled Hindu Kush Mountains andcomprising of seven administrative areas of Bajaur, Mohmand,Khyber, Orakzai, Kurram, North and South Waziristan, whichare referred to as agencies, as well as six smaller settleddistricts known as frontier regions (FRs) that include1 FATA Secretariat, http://fata.gov.pk, (accessed November 21, 2012).

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Bannu, Dera Ismail Khan, Kohat, Lakki Marwat, Peshawar andTank, FATA is a culturally and historically rich area.2 FATAis bounded on one side by the Khyber Puktunkhwa province andshares a 1,600km border with Afghanistan on the other.3

Apart from Orakzai, all agencies share a border withAfghanistan.4 This mountainous, rugged and semi- autonomousregion is home to a predominantly Pakhtun tribesmen in apopulation of an estimated 3.18 million people.FATA is the most underdeveloped, isolated and impoverishedregion of Pakistan, as is evident from an abysmally lowliteracy rate of 17.42% (29.51% of the male, and 3% of thefemale population is literate).5 Only 2.7% of the populationof FATA resides in established towns. Unique traditions,geography, proximity to Afghanistan and a different systemof governance and political rights have given rise tovarious problems that are unique to FATA. It is argued thatthe British and subsequent Pakistani policy of tribalsubsidies have contributed to impoverishment of Pakhtuntribesmen.6

The system of governance and laws in the tribal areas arebased on the reality of the lives of the people and theircustoms and cultural precedents empowered by the colonizerswhose main concern was to maintain the balance of power.When Pakistan took over the British system of law in 1947,the system of governance in FATA was preserved.

2 Teepu Mahabat Khan, The Tribal Areas of Pakistan, (Sang-e-Meel Publications, Lahore, 2008).3 Tasawar Baig, The Situation in the Afghanistan-Pakistan Border Regions, ODUMUNC Issue Brief for the United Nations Security Council 2010.4 Bajaur shares a border with the Afghan province of Kunar, Khyber agency with Nangarhar province, Kurram agency shares a border with two Afghan provinces - Nangarhar and Paktia, Mohmand with the Afghan city ofJalalabad in Nangarhar province and North Waziristan (NW) the largest agency in terms of area and South Waziristan (SW) the second largest both border the Paktika and Khost provinces.5 Shuja Nawaz, FATA – A most dangerous place: meeting the challenges of militancy and terror in the Federally Administered Tribal Areas of Pakistan, (Centre for Strategic and International Studies (CSIS) Report 2009).6 Edward Hunter, The Past Present: A Year in Afghanistan (London UK: Hodder and Stoughton, 1959), 344.

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The aftermath of 9/11 has radically transformed the tribalareas and has highlighted the region globally. It hasrendered the traditional governance structure totallyineffective and has introduced some new actors and forces inthe power structure of the tribal areas. Pakistan army’sintervention in the tribal agencies, combined with actionstaken by the neo-Taliban insurgents has resulted inweakening of the political administration system in severalof the tribal agencies. The capacity of ‘CollectiveResponsibility’ of individual tribes to ensure order andsecurity in their respective areas is severely weakenedwhich translates into the need for a higher state presencein the tribal areas. Often seen as an ungoverned spaceconducive to the development and perpetuation of terroristand militant safe havens, following the 2008 elections,there have increasingly been calls for restructuring thesystem of governance in the tribal areas to bring FATAgovernance into conformity with constitutional andinternational norms. Fundamental weaknesses have beenrevealed in governance system in FATA. Despite the clamorfor legal and governance reforms in FATA,7 though the formand trajectory of reforms in FATA have not yet beencrystallized.

Statement of ProblemExploring the factual position of changing governanceconditions and issues in FATA, this paper, criticallyexamining the structure of governance, especially FCR inbackdrop of its colonial origins, the changing environment,and an assessment the reforms already introduced by thegovernment, attempts to find the linkages of variousvariables impacting conditions of governance in FATA forpossible resolution of governance issues in the tribal areasof Pakistan. This paper will endeavor to answer thefollowing inter-linked research questions:

7 Imtiaz Gul, The Most Dangerous Place, Pakistan’s Lawless Frontier, (Penguine Books,2010).

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1. How the impact of the FATA’s administrative andgovernance system contributed to the radicalization ofthe FATA in the 1980s and 1990s?

2. What changes the war on terror and militaryinterventions have brought about in the powerstructures and political economy of FATA and how theseimpact the conditions of governance reform?

3. What is the likely viability of the proposed governancereforms in the tribal areas?

As such, this study will also suggest the possibletrajectoruy for governance reform in FATA.

MethodsThis study is based on extensive historical and contemporaryqualitative research and used a combination ofchronological, descriptive and analytical methods ofresearch by making use of the written material available onthe tribal areas of Pakistan. The research focused onInternet articles, websites, published monographs, andmilitary documents. The primary sources for this research are historicaldocuments compiled by the British. This research also relieson quantitative data from the Government of Pakistan, WorldBank, and United Nations agencies. Occasionally, given thedearth of published data and academic literature about theFATA in certain areas, this study also takes incorporatesnews reports. Select as well as extensive in-depthinterviews of practitioners of tribal administration andresidents of FATA supplement this process.

Significance and Scope An assessment of the possible impact of the proposed andimplemented reforms and their likelihood of solving theprevalent issues in the tribal areas is a subject of greatimportance for the policy makers, its implementers, thelocal population as well as the national and theinternational community. This study is of importance becausethere is a dearth of research that sheds light on thecurrent conflict, its impact and examines the big picture of

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reforms in FATA in both a historical and contemporarycontext. There is a strong need for a thorough analysis of theeconomic and social situation of FATA and to examine all thedifferent factors in the conflict under one umbrella. Inlight of the current situation, it is important to see whatimpact militancy, the economic situation and militaryinterventions have had on the region. This study thereforewill make a significant contribution by systematicallyassessing these recent FATA reforms in the historicalcontext along with their likely impact on the localconditions as well as to recommend some further possiblesteps to improve existing situation in the tribal areas ofPakistan.

Limitations This study will not be able to assess and examine all thepossible impact of the implemented or proposed reforms orthier contribution in the resolution of problems faced bythe people because of multiple operative variables likepresence of Pakistan Army, foreign militants, Talibanhideouts, drone attacks, narcotics trade and mafias in thearea. Another limitation of this paper is the continuouslychanging situation of the region that may describe adifferent course of action to be adapted to the governancereform in FATA. As this study is compiled over a short span,any new development in the region with limited bearing onthis study may not be included.

Review of the LiteratureThough its growing importance in the “war on terror” has putFATA under the political and media spotlight and there hasbeen a proliferation of studies and works on FATA in lastdecade, some of the most significant literature about thearea has been written by British historians and civilservants. Literature on governance in tribal areas ofPakistan has debated emphatically on the working and flawsof the system inherent in the contrasting interests of thetribal people and the state. The crisis of governability intribal areas was shaped by contest among policy makers of

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‘encapsulating system’ over the question of, ‘direct-indirect’, ‘discretionary-mediated’ form of rule.8 Twodominant axes of contention on questions of governance inFATA can be identified in literature. The first axis of debate is steered by those couched in atradition that might be called personalist or paternalist,who advocated a relatively unstructured and discretionarystyle of governance that sought to situate the locus ofstate authority in the personal charisma and power of theindividual administrator while maintaining autonomy oftraditional tribal customs and mores. This axis of discoursecenters on the degree to which state rule ought to bemediated. Historically speaking, the personalist ideal isoften associated with the early days of the Company Raj inthe Indian heartland of the empire; and with the Britishgovernance of the more far-flung frontier territories in thesecond half of the 19th century, where British governancerelied on comparatively unstructured patterns of interactionwith local populations. The second axis of debate thatoccupied British thinking about governance, in many waysinformed by political discourse, has been a debateessentially about whether the patterns of interactionbetween the state and the society should have the individualadministrator as their fulcrum, or be replaced with a moreimpersonal structure of state authority. The two visions ofgovernance - one restrained, discretionary, and localized;the other ambitious, impersonal, and systemic - form thepoles of an ongoing debate in literature on governancereform in FATA. These two dominant axes of debate have beencarried forward to the current times by researchers,commentators and practitioners of governance in FATA. In 1981, Akbar S. Ahmed9 revealing the degree that thePakistani elite adopted the British mindset in addition tothe administrative structure governing the FATA, attributes8 Joshua. T. White, “Shape of Frontier Rule: Governance and Transition From the Raj to the Modern Pakistani Frontier”, Asian Security, 4 (3): (2008), 219-243.9 Akbar S. Ahmed, “Pukhtun Tribes in the Great Game,” in Afghanistan and theFrontier, 208.

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the political agents’ ability to assume much broadermandates after 1947, including organizing developmentplanning. Although he portrays the FATA politicaladministration as flawed, he maintains that it is ideallysuited to their tribal nature, provided that the politicalagent acts justly within the pakhtunwali. Khalid Aziz arguedas late as 2004 that the FATA administration could still bemade to work if the Pakistani military retreated to tacticalareas as the British had in 1923 and allowed the politicalagent of each agency to “operate through an elaborateintelligence network based on his tribes.”10 Aziz admitsonly the need for minor changes, including a need to brushup the watch and ward policy, but otherwise demonstrates thegovernment’s continued reliance on the methods developed bythe British more than a century ago.11 Marvin G. Weinbaum,like many Pakistani civil servants, views the FATAadministration with romantic nostalgia for its perceivedeffectiveness in governing a historically ungovernableregion.12

Human Rights Commission of Pakistan (HRCP) in 2005 publisheda report “FCR: A bad law nobody can defend”, which focusesupon the disorder created through the exercise of FCR inFATA. This report attempts to include the point of view ofthe common citizens in FATA regarding FCR and the judicialsystem in FATA. Pursuing the other axis of debate, thereport by the Human Rights Commission of Pakistan assertsthat the provisions of FCR are in violation of UniversalDeclaration of Human Rights and the Constitution ofPakistan. This report further argues, “Opinions about thestatus of the FCR vary. Some people want its totalreplacement by a modern legal and judicial system whileothers want to retain it in its present shape, albeit with10 Khalid Aziz, “Fallout of the Wana Operation,” Dawn, 7 August 2004, http://www.dawn.com/2004/08/07/op.htm#4 (accessed Oct 23, 2012).11 Ibid.12 Marvin G. Weinbaum, Counterterrorism, Regional Security, and Pakistan’s Afghan Frontier, in testimony to the U.S. House of Representatives Armed ServicesCommittee, (Washington, D.C., 10 October 2007), http://armedservices.house.gov/pdfs/FC101007/Weinbaum_Testimony101007.pdf, (accessed December 12, 2012).

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some minor modifications.”13 An SMC individual researchpaper titled “Emergence and rise of Taliban in the tribalareas of NWFP,”14 also blames FCR for the poor conditionsprevalent in FATA which helped the rise of Taliban andadvocates major changes in FCR.The National Bureau of Asian Research published in 2008“Challenges Facing Pakistan’s Federally Administered TribalAreas (FATA)” that contains two essays by prominentPakistani social scientists: Ijaz Khan and Pervaiz iqbalCheema. As for remedies to the FATA problem, Khan and Cheemaplant themselves largely on opposite poles. Khan maintainsthat the FATA issue is more political than developmental andinsists that there can be no meaningful developmental changewithout a basic change in the FATA’s status by which hemeans the region’s full political and constitutionalintegration into Pakistan. Cheema, in contrast, maintainsthat Pakistan’s current heavy reliance on military force isnot likely to succeed in the absence of major political andeconomic reforms.

Organization of the PaperThe paper begins by explaining the tribal socialorganization and normative structure in tribal areas and itsfirst section titled “The Colonial Legacy” presents anoverview of governance system in FATA examined inperspective of its colonial lineage. This section deals morespecifically with the initial development of tribal autonomyand its later solidification through various coloniallegislations explored within the larger context of tribalnormative and social structures. In this section, I endeavorto contextualize the colonial tribal governance system inbackdrop of the lines of debate central to the imperialdiscourse on governance identified in Review of theLiterature that informs current debates concerning localgovernment reform in FATA.

13 Human Rights Commision of Pakistan, A bad law nobody can defend, (Lahore: Human Rights Commision of Pakistan, Peshawar Chapter, 2005).14 Emergence and rise of Taliban in the tribal areas of NWFP, IRP, 5th SMC.

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Section II, “FATA after Independence”, examines the FATAgovernance system since 1947 and situates it withinconstitutional and administrative context. This analysisculminates by examining the vexing challenges of reformingthe antiquated and dysfunctional Frontier Crimes Regulation(FCR) of 1901, which provides the basis of tribal governancein the FATA.Focusing on the deleterious impact of militancy and militaryoperations on governance structures and developmentinitiatives, Section III titled “Evolving Socio-EconomicLandscape and Power Structure” examines changes in politicaleconomy and power structures and loci in FATA and addresseshow the impact of the FATA’s administrative systemcontributed to the radicalization of the FATA. The study proceeds to assess succinctly the proposed FATAreforms for their merit, context, justification andimplications in Section IV, “Reform of Tribal AreasGovernance,” which also identifies Pakistan’s strategy fordeveloping the FATA noting earlier government attempts todevelop the area. Finally, the conclusion highlights the main points raised inthe paper and links them together, as well as discuss thefuture of the issue based on its evolution in various timeperiods and power structures in Pakistan. I contend, inparticular, that possible transition paths for therestructuring of governance in the FATA can beconceptualized in the space provided by the various axes ofdebate on FATA reform. The recommendations for locallylegitimate governance reforms in FATA that follow from thisstudy form the closing part of the paper.

SECTION I - THE COLONIAL LEGACYSocial Organization and Normative StructureThe Pakhtuns in FATA traditionally constitute a segmentary,acephalous and tribal society. Edwards has pointed out that

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that tribe as a concept means a form of social organizationthat has the characteristics of patrlineal descent from aneponymous ancestor, territorial and political division ofthe descent groups on the principle of segmentation andcomplementary opposition, reproduction of these segmentationat each level of social structure and diffusion of politicalpower at each level.15 Each tribe in FATA draws itsgenealogy from single mythical apical ancestor Qais. Thecommon ancestor had sons, grandsons and great grandsons eachbeing the ancestor of tribes, sub-tribes and sections. Lineage structures are more important to tribal identitythan land holdings because lineage determines privilegessuch as the right to carry a gun or speak in a gathering. Inaddition, the Pakhtuns tend to name their villages after thesenior living elder rather than a geographical or historicalfeature. Thus, generation recall, or the ability of eachhousehold head to trace his lineage back to the foundingfather, is common among the Pakhtuns.16 Each Quom has alarge number of clans or khels, descending from the others. Asub-clan is a smaller division of a clan, and represents agroup of families that are co-located in a single village. Asection represents a single family living in severaldifferent houses (for example, five brothers living in fivedifferent houses, each with his family). The smallestdivision is labeled as a sub-section, indicating a singlehousehold. Anderson contends that kinship and ethnicity arebound in a single framework of Quom or tribe.17 Heexplicates that Quom represents kinship ties, primordialsolidarity, equality in the ranks of tribal segments and itsmembers, and is manifested in tribalism (Quomwali). He,thus, tends to find Quomwali, embedded in kinship, a primaryfeature of Pakhtun identity.18 Edwards argues that thestructure of the tribe is sustained through dynamics or15 David. B. Edwards, “Frontiers, Boundaries and Frames: The Marginal Identity of Afghan Refugees”, in Akbar S. Ahmed, ed. Pakistan: The Social Sciences’ Perspective, (Karachi: Oxford University Press 1990), 70.16 Ahmed, Resistance and Control in Pakistan, 27.17 Jon W. Anderson, “There Are No Khans Anymore: Economic Development and Social Change in Tribal Afghanistan”, Middle East Journal, 32(2): (1978), 167-183.

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tension such as reciprocal violence. In the case of thePakhtuns this is manifested in the concept of equality(siyal), tarburwali (agnatic rivalry) or seyali (competition).19

The Pakhtuns often engage in social, political and economicactivities within their own concentric rings and thisengagement normally prevents each government or authority togain control over the tribes.20

Pakhtun tribes are acephalous - they do not have a chief orhead of the whole tribe. Chiefs, to the extent they mayexist, are only in charge of their segments or households.However, the Pashtun differ from purely headless societiesin that they do have some internal organization andstratification. The acephalous, segmentary tribal organization, mostlyuntaxed pastoral economy and egalitarian ethos partlysupported by limited individual land ownership in FATA andmanifested in tribal elder’s council known as jirga maketribal areas different from settled areas. Tribal identityas a pervasive aspect of social life with gender and age arekey factors that form an axis of influence in Politicalcapital in the FATA is heavily concentrated in the hands ofjust a few people. Influential households belong to dominanttribes with economic power and primacy in access to andcontrol over resources and opportunities. The institution of

18 Jon W. Anderson, “Khan and Khel: Dialectics of Pakhtun Tribalism”, inRichard Tapper, ed. The Conflict of Tribe and State in Iran and Afghanistan, (London: Croom Helm, 1983), 119-149.19 Ibid. 70-72.20 Louis Dupree, Afghanistan (2nd ed) (Oxford, UK: Oxford University Press, 1980), 415. Nearly 60 tribes and sub-tribes inhabit FATA. In Khyber Agency the main tribes are Afridi, Shinwari, Mullagori and Shilmani. In Kurram there are Turi, Bangash, Sayed, Zaimusht, Mangal, Muqbil, Ali Sherzai, Massuzai, and Para Chamkani. Salarzai branch of the Tarkalanri tribe and Safi dominate Bajaur. In Mohmand Musakhel, Tarakzai, Safi, Uthmankhel, and Haleemzai and in Orakzai Aurakzai and Daulatzai are found. In South Waziristan Mahsud Wazir, and Dottani/Suleman Khels, while in North Waziristan Dawar, Wazir, Saidgi and Gurbaz are found. Ahmadzai, Uthmanzai, Shiranis, Ustrana, Zarghunkhel, Akhorwal, Shirakai,Tor Chappar, Bostikhel, Jawaki, Hasankhel, Ashukhel, Pasani, Janakor, Tatta, Waraspun, and Dhana populate Frontier Regions.

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the jirga provides those with power a mechanism to controldecision-making in FATA. Due to the continued practice of the ancient nikat(apportionment) system, tribal and sub-tribal identitiesplay a crucial role in the lives and livelihoods of localpeople. Under this system, rights of access to and controlover resources and service are apportioned according to thenumber of warriors in each tribe. This apportionment is usedfor division of both private and public resources andservices. The government also uses ratios assigned by thenikat system for allocating development schemes.The Pakhtun tribes that dominate the FATA and shareadditional characteristics that help explain their socialorganization and normative dynamics. The Pakhtun tribesacross Pakistan and Afghanistan share similarcharacteristics and social norms, characterized by thePaktunwali, or ‘way of the pakhtuns.’ Pakhtunwali variouslydefined as “the way of the Pathans,” 21 “the code of honour”22

and “the manner and customs of the Afghan tribes, the Afghancode”,23 is in fact a conglomerate of cultural featuresdeemed ideal by the Pakhtuns. A saying among the Pakhtunsdifferentiates Pashto language from the code, “He is Pathanwho does Pashto, not (merely) the one who speaks Pashto.”Pakhtunwali serves as a code of honor that maintains orderthrough informal rules (narkh) that are implemented by theconsensus of tribal elders or a jirga.24 These institutionsfacilitate performance on certain basic values thatconstitute the basis of Pakhtun culture: “male autonomy andegality, self expression and aggressiveness.”25 Iftikhar21 James W. Spain, The Way of the Pathans, (Karachi, Oxford University Press 1962), 25.22 Akbar S. Ahmed, Pukhtun Economy and Society: Traditional Structure and Economic Development in a Tribal Society, (London: Routledge and Kegan Paul 1980).23 Bernt Glatzer, “Being Pashtun-Being Muslim: Concepts of Person and War in Afghanistan”, in B. Glatzer, ed. Essays on South Asian Society: Culture and Politics II, Working Paper 9, (Berlin: Zentrum Moderner Orient 1998), 3.24 Ibid.25 Fredrik Barth, “Pakhtun Identity and Its Maintenance”, in Fredrik Barth, ed. Ethnic Groups and Boundaries, (Illinois: Waveland Press 1969), 120.

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Hussain argues that Pakhtunwali is a ‘code of ethics’ fromwhich flows the ‘social norms’ or ‘customs and usages’ knownas Riwaj.26 Pukhtunwali principles and riwaj form thenormative content of the informal, traditional justicesystem of the various tribes of FATA.Barth sees the Pakhtun culture to be embodied in the threeprimary institutions of Melmastia (hospitality), Jirga(council) and Pardah (seclusion of women).27 Melmastia orhospitality is to serve the outside or guest in differentways. To offer meal to a passing stranger, serving andentertaining friends and distributing gifts or renderingfood to win political following.28 Edwards find it a qualitydemonstrated by rich and poor alike.29 Hujra (male guesthouse), being the site of hospitality is having widercultural, social and political functions.30 although Barthfocused on the political and economic aspect of it,31 Ahmedtouched its social and cultural aspect by pointing out thata Pakhtun is ‘da melma dost’ (a friend of guests) and thatguests are served with greater respect and care.32 Badal, another central feature of Pakhtunwali, signifies‘revenge’, ‘vendetta’, and ‘reciprocity.’ Badal permits nolimitation on revenge in time or space and permits revengeregardless of cost or consequences. Nanawatee, means ‘to goin’ or ‘refuge’. Ahmed elaborates that it is evoked when anenemy ‘goes in’ to sue for peace. In such situationmagnanimity must be shown even to one’s staunchest enemy.33

In a situation where it is difficult or impossible to

26 Sayed Iftikhar Hussain, Inaugural Address. In Pervaiz Iqbal Cheeema and Maqsudul Husan Naqvi, eds. Tribal Areas of Pakistan: Challenges and Responses. Islamabad, (Islamabad Policy Research Institute 2005), 5-6.27 Ibid. 117-134.28 Fredrik Barth, Political Leadership Among Swat Pathan (London: The Anthlone Press, 1959), 77.29 David. B. Edwards, Heroes of the Age: Moral Fault Lines on the Afghan Frontier (Los Angles: University of California Press, 1996), 67.30 Ibid. p. 80. Charles Lindholm and Michael. E. Meeker, “History and the Heroic Pakhtun”, Man. New series,16 (3): (1981), 445, 468.31 Ibid.32 Akbar. S. Ahmed, Pukhtun Economy and Society: Traditional Structure and Economic Development in a Tribal Society, (London: Routledge and Kegan Paul 1980), 90.

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achieve badal, then a Pashtun will seek baramta, which refersto the idea of holding a person or possession hostage inorder to obtain an acceptable form of restitution. Pardah is another feature of Pakhtunwali. I connote seclusionof women and through it the ‘virility and primacy of themale’ in society is ensured. Ahmed avers that women are evendenied the right to share in their father’s property or togive consent in her own marriage, both of these practicesbeing against Islamic teachings.34 Beside these centralfeatures, Lindholm extended the list of Pakhtunwali featuresor values by including “equality, respect, loyalty, pride,bravery, Purdah, pursuit of romantic encounters, the worshipof Allah and most importantly the unselfish love for thefriend.”35 The protection of female members of society andwealth (namus), and honor (izzat) are essential elements indynamics of Pakhtunwali.36 Akbar S. Ahmed’s analysis of thePakhtunwali also presents the concept of tarburwali, literally,the enmity of brother’s sons or agnate rivalry, as animportant force in determining societal structure, becauseit limits the development of political hierarchy. As cousinscompete for scarce resources in a patrilineal society,coalitions form that offset those with too much ambition,re-establishing the social balance. Cousins compete againstcousins, yet in the face of an external foe, where “there isa clear-cut clan or tribal alternative to choose from, thecloser kin may be supported.”37 Pakhtunwali is alsoconditioned by an arrangement of tribal relationships

33 Akbar. S. Ahmed, Pukhtun Economy and Society: Traditional Structure and Economic Development in a Tribal Society (London: Routledge and Kegan Paul 1980), 90.34 Akbar S. Ahmed, Pakistan Society: Islam, Ethnicity and Leadership in South Asia (Karachi: Oxford University Press 1997, First published in 1986).35 Charles Lindholm, Generosity and Jealousy: the Swat Pukhtuns of Northern Pakistan, (New York: Columbia University Press 1982), 211.36 Shahmahmood Miakhel, The Importance of Tribal Structures and Pakhtunwali in Afghanistan;Their Role in Security and Governance, 2006, 4, http://www.pashtoonkhwa.com/files/books/Miakhel%20-%20Importance%20of%20Tribal%20Structures%20in%20Afghanistan.pdf, (accessed on November 29, 2012).37 Akbar S. Ahmed, Resistance and Control in Pakistan, 24.

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including rivalry (gundi) and tribal allegiances or unions(tarun) between the Quoms.38 Pakhtunwali has served as the ideal model for Pakhtunbehavior. Ahmed rightly asserts that “the code is the idiomthrough which the Pukhtun expresses his Pukhtunness.”39 “Thismodel provides a Pathan with self-image, and serves him as ageneral canon for evaluating behaviour on the part ofhimself and other Pathans.” 40 Although Islamic tenets offaith are important to the Pakhtun way of life, they oftendo not prevail over Paktunwali. One example is the femaleinheritance of property, which Islam mandates but thePaktunwali does not. It appears that Islam and Pakhtunwali haveboundaries and disjunction between them and that thePakhtuns construct symbolic and situational Muslimness.Often associated with “highly contingent, materiallydifficult lives,”41 Pakhtunwali is conditioned on circumstancesas it may be practiced only when it provides practical‘self-image’.42 Despite external and internal socio-economicand political pressures, Pakhtunwali features and notions havesurvived. This, however, does not mean that they have beenstatic and have not been changing and reshaping. As Banerjeeconcludes, the notions of ‘Pakhtunness’ are not fixed butrather are the subject of negotiation and innovation.43

Pakhtunwali as a symbolic system is significantly malleableand can be used and shaped, manipulated, constructed,deconstructed, and contested. There is substantial evidencethat the fact of most tribals being dwa kora (having twohouses), one in tribal areas and other in cities,44 hasdiluted notions and mores of Pakhtunwali.38 Miakhel, (2006), 4.39 Akbar. S. Ahmed, Pukhtun Economy and Society: Traditional Structure and Economic Development in a Tribal Society (London: Routledge and Kegan Paul 1980), 91.40 Fredrik Barth, “Pakhtun Identity and Its Maintenance”, in Fredrik Barth, ed. Ethnic Groups and Boundaries, (Illinois: Waveland Press 1969), 120.41 Robert Nichols, Settling the Frontier (Oxford, UK: Oxford University Press, 2001), 15.42 Ibid.43 Mukulika Banerjee, The Pathan Unarmed. (Karachi: Oxford University Press 2000), 14-15.

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Historic Context of the Governance System in FATAThe British confronted an array of Pakhtun tribes spreadacross an unexplored terrain. According to historian HughBeattie, controlling these tribes fully would have requiredeven more military might than even that possessed by currentgovernments.45 Additionally, there was no set frontierboundary between the British territory and the AfghanKingdom. In fact, the tribal territory beyond Britishcontrol was known as ilaqa ghair, territory un-administered bythe state (a title which still applies today), or Yaghistan,the land of rebels or land of freedom or unrestraint, wherethe people were “armed to the teeth and were the mostnotorious raiders and plunderers in history.”46 Afghanistanclaimed authority over the passages between the two lands.The British policy towards the tribal belt was based on amix of persuasion, pressure and armed intervention. For thefirst twenty years, the British implemented the “CloseBorder Policy,” a policy of non-interference that involvedminimal intervention in the tribal areas. This policyinvolved establishing a number of tribal agencies, enclosedby a chain of posts and cantonments, where the Pukhtuntribes would be allowed to govern their society according totheir own laws and customs.47 Furthermore, they eliminatedcustom duties on the Frontier to encourage the tribes totrade in India.48

Following the second Anglo-Afghan War of 1878-80, theBritish realized they needed direct relations with the

44 Akbar S. Ahmad, Social and Economic Change in Tribal Areas1972-1976, (Oxford, UK: Oxford University Press, 1977).45 Hugh Beattie, Imperial Frontier: Tribe and State in Waziristan, (Richmond, Surrey: Curzon Press, 2002), 24.46 Olaf Caroe, The Pathans: 550 B.C. – A.D. 1957, (London: MacMillan & Co Ltd, 1958), 346.47 Claude Rakisits, “National Integration in Pakistan: The Role of Religion, Ethnicity and the External Environment”, Ph.D. Dissertation, (University of Queensland, 1986), 221.48 Hugh Beattie, Imperial Frontier: Tribe and State in Waziristan, (Richmond, Surrey: Curzon Press, 2002), 25.

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tribes to enhance their own security measures in the mainpasses that led to Afghanistan.49 Britain instituted its“Forward Policy,” that fundamentally consisted of‘pacifying’ the tribes as far west as possible. To securetheir legitimacy, the British started a system of allowances(muwajib). Maliks from every tribe were co-opted and paid anallowance in return for a guarantee of border security,control of raiders and general good behavior. “Makingparticular tribes responsible for the security of particularroutes into the hills (in exchange for allowances), known bythe British as ‘pass responsibility,’ was an importantfrontier management technique.”50 If they did not keep theirpromises, the British punished the tribes with economicblockades, hostages, property seizure and militaryexpeditions. Additionally, the British often took advantageof intra-tribal rivalry to pit one tribe against the other.The controversial allowance system came under fire as beinga form of blackmail and for creating rifts in an egalitariansociety by giving corrupt maliks stipends but many Britishstrategists.51 Ordinary civil and criminal laws then inforce in British India were applied to this region till1871, when the first Frontier Crimes Regulation wasintroduced. That remained in force till partition whenIndependence of India Act 1947 was introduced. Under thisAct, the law of undivided India was allowed to continueuntil it was changed by the Legislature of respectivecountries. One of the pieces of legislation that thecountries inherited at the time of independence was the FCRIII of 1901.52

49 D.P. Singhal, India and Afghanistan 1876-1907: A Study in Diplomatic Relations, (Queensland, Australia: University of Queensland Press, 1963), 142.50 Hugh Beattie, Imperial Frontier: Tribe and State in Waziristan, (Richmond, Surrey: Curzon Press, 2002), 34.51 Olaf Caroe, The Pathans: 550 B.C. – A.D. 1957, (London: MacMillan & Co Ltd, 1958), 349. Olaf Caroe was among those who defended it, arguing that since the tribes were not direct subjects of the British Empire or theirlegal codes, this was a way to keep them from raiding the more settled tribes in the plains.52 ibid.

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Maintaining a different policy of governance by the Britishin tribal region is ascribed to various reasons other thanthe results of 1897-1898 tribal wars. The British wanted tomaintain the Indus as the real border of their empire53 andto limit the costs of the violence stemming from the borderregion and to protect their India possession from Russianencroachment. Their primary interest in the northwestfrontier was ensuring security of lower India, notgovernance of remote frontier areas. Beginning with the KukiKhel, the British successfully employed a system ofCollective Responsibility that held the entire triberesponsible for the acts of a few.54 Robert Warburton,political agent in the Khyber from 1882 to 1896, developedthis into the ‘Khyber system,’ which held that the Britishwould not interfere with the tribes provided that the tribesdid not interfere with the pass or any other Britishinterest.55 In addition to punitive measures (blockades,fines and destruction of crops and property), Britishofficers also tried to emulate the special relationship thatKabul fostered by granting the tribes special privileges.Robert Bruce, Deputy Commissioner of Dera Ismail KhanDistrict (1888-90) and Commission of the Derajat Division,Punjab Province (1890-96), emulating the system developed bySir Robert Sandeman, Chief Commissioner of BaluchistanProvince (1877-1892) arranged allowances to the tribalmaliks in return for a tribal levy for militia service incantonments built along routes to the key passes.56 TheBritish administration formalized these measures from 1871-1876 into the Frontier Crimes Regulations (FCR). Among otherfactors that led to the introduction of Frontier CrimesRegulation (FCR) was the crime situation in these districts.Not less than one murder per day, on an average, was

53 Owais Ahmed Ghani, Governance challenge in the tribal Areas (FATA) & The North-West Frontier Province. Unpublished Policy paper, Peshawar: Governor NWFP, 2010.54 Spain, The Way of the Pathans, 56.55 Beattie, Imperial Frontier: Tribe and State in Waziristan, 154.56 Evelyn Berkeley Howell, Mizh: A Monograph on Government’s Relations with the Mahsud Tribe (Simla: Government of India press, 1931), [reprint, New York:Oxford University Press, 1979], 14.

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committed even in a comparatively peaceful district likePeshawar.57

The colonial system was characterized by minimum statepenetration and a highly mediated, unstructured, personalistgovernance aiming only at ensuring security for roads andgovernment posts by leveraging the institutions of tribalauthority that existed in a comparatively egalitarianPashtun society. This highly mediated, discretionary form ofgovernance required of the Raj only a thin presence on theoutposts of its empire to invent a paternalistic but distantvision of governance. Thus evolved a system of what SyedIftikhar Hussain58 calls ‘loose control’ over tribal areasthat could be conceived as a kind of compromise betweenlocal autonomy and imperial control. The compromise itselfwas reached through treaties between the British governmentand the local tribal chiefs. Other salient features of thisform of control included, the creation of the office ofPolitical Agent, Frontier Crimes Regulation, Malaki systemand Riwaj (customs). Political Agent was to ensure complianceof the treaty, keep peace through a number of inducementsand punitive measures, negotiate between the government andthe tribes and ensure the presence of the government in thearea through levis or khasadars on his disposal.59 However, theuse of subsidies in conjunction with the establishment ofunstructured governance created a scenario where the tribesbecame satisfied receiving money from the British inexchange for not engaging in violent behavior. Once thispractice became the new reference point for tribal dealingswith the British, any concession of independence would beinterpreted as a loss.

57 http://alaiwah.wordpress.com/2008/11/28/evolution-of-the-fcr-frontier-crimes-regulation/ 58 Syed Iftikhar Hussain, “Inaugural Address”, in Pervaiz Iqbal Cheeema and Maqsudul Husan Naqvi, eds. Tribal Areas of Pakistan: Challenges and Responses. (Islamabad: Islamabad Policy Research Institute, 2005), 5.59 Azmat Hayat Khan, “Federally Administered Tribal Areas”, in Pervaiz Iqbal Cheeema and Maqsudul Husan Naqvi, eds. Tribal Areas of Pakistan: Challenges and Responses. (Islamabad: Islamabad Policy Research Institute, 2005), 96.

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SECTION II - FATA AFTER INDEPENDENCEThe decision to leave some liminal regions of the frontierunder the hands-off FCR system is explainable in part by thecompulsions of the early Pakistani state. Being a new statewith very little capacity, Pakistan had to rely more on itsabilities to influence the Pakhtuns in tribal areas throughdiplomacy than military forces or money. The one thingPakistan did have was a common ground rooted in Islam. At the most basic level, Jinnah had promised at independenceto respect the traditions and autonomy of the Pashtunsresiding in the tribal areas.60 In 1947, when Pakistan wascreated, the tribes in the tribal areas were impressed uponby Jinnah and the Muslim League to re-enter into treatieswith the state of Pakistan in return for the continuation ofBritish policies and incentives.61 Such treaties, therefore,were signed immediately in 1947 between tribal leaders andthe government of Pakistan, which recognized that tribalareas were part of Pakistan and guaranteed policycontinuation in administering these Tribal Areas. On April17, 1948, Jinnah convened a Tribal Jirga comprising ofTribesmen, at the Governor House in Peshawar. In his firstofficial interaction with them, Jinnah thanked the tribalsfor the role they had played and the services they hadrendered in the movement for the creation of Pakistan. Hesaid,

… Pakistan has no desire to unduly interfere withyour internal freedom. On the contrary, Pakistanwants to help you and make you, as far as it liesin our power, self-reliant and self-sufficient andhelp in your educational, social and economicuplift, and not be left as you are dependent on

60 Rashid Ahmad Khan, “Political Developments in FATA: A Critical Perspective”, in Pervaiz Iqbal Cheema and Maqsudul Husan Naqvi, eds., Tribal Areas of Pakistan: Challenges and Responses (Islamabad: Islamabad Policy Research Institute, 2005), 25–26.61 Humayun Khan, “The Role of the Federal Government and the Political Agent”, in Pervaiz Iqbal Cheeema and Maqsudul Husan Naqvi, eds. Tribal Areas of Pakistan: Challenges and Responses, (Islamabad: Islamabad Policy Research Institute, 2005).

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annual doles, as has been the practice hithertowhich meant that at the end of the year you wereno better off than beggars asking for allowancesif possible a little more. You have also expressedyour desire that the benefits, such as yourallowances and khassadari that you have had in thepast and are receiving, should continue. Neithermy Government nor I have any desire to modify theexisting arrangements except in consultation withyou so long as you remain loyal and faithful toPakistan.62

The famous ‘Instrument of Accession’ signed by Quaid-i-Azamat the Bannu Tribal Jirga, in January 1948, accepted theautonomous status of FATA. The same principle was enshrinedin all the constitutions of Pakistan. There were, as well, structural and strategic reasons behindthe nascent state’s decision to leave tribal governancelargely undisturbed. Newly independent, Pakistan focused onits border with India, and was pleased to have a bufferregion along the disputed Durand line with Afghanistan. Shehad no pretensions of becoming a welfare state, and thus hadlittle reason to be concerned that the tribal systempractically precluded delivery of basic services. For thesereasons, among others, Pakistan adopted an essentialistrhetoric that framed the Pakhtun tribes as being basicallyungovernable and continued the British policy of minimalinterference, ultimately causing the tribes to remain on theperiphery of the rest of Pakistan economically, politicallyand socially. Pakistan continued to provide allowances andsubsidies to the maliks and in return the local tribesdeclared their loyalty to Pakistan.”63 To the tribalagencies of Khyber, Kurram, North Waziristan and South

62 M. Afzal Rafique, Selected speeches and statements of Quaid-i-Azam Mohammad Ali Jinnah‘ (1911-34 and 1947-48), Research Society of Pakistan, (Lahore: University of the Punjab 1966).63 Claude Rakisits, Pakistans Tribal Areas: A Critical No-Mans land. Paper deliveredat Webster University Forum, Geneva, 25th April 2008. geopoliticalassessments.com/Pakistan_s_Tribal_Areas.pdf, (accessed on November 29, 2012).

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Waziristan were later added Mohmand Agency in 1951, andBajaur and Orakzai in 1973. In 1951-1952, the government ofPakistan re-entered into agreements with tribal chiefs toacquire greater control.64

Constitutional status of Federally AdministeredTribal Areas (FATA)Following the Simon Commission, self-government wasintroduced in other parts of India but not in NWFP andtribal areas based on the argument that the Pakhtuns wereneither capable of democratic self-government nor interestedin it. The Government of India Act, 1935 had specialprovisions for tribal or special areas. The ProvisionalConstitution Order 1947, however, lacked these provisions. In Chapter 2 of the Constitution of 1956, in the territorialclause on Pakistan, the tribal areas and frontier regionswere mentioned along with the NWFP. Article 223 of the 1962Constitution kept tribal areas outside the jurisdiction ofcentral and provincial laws. Special powers of legislationwere conferred on the governor of the province in which thetribal area is situated. The governor, with the approval ofthe president, was empowered to make, repeal and amend anyregulations or could amend any central and provincial lawfor the whole or any part of the area. In the Constitutionof 1962, higher judiciary had jurisdiction over Tribal Areasand Frontier Regions, but later on an amendment was made inArticle 223(5) to oust the jurisdiction of higher judiciaryin the tribal areas. The 1973 Constitution maintains the same arrangement fortribal areas. Under Article 247 of the Constitution of theIslamic Republic of Pakistan 1973, the FederallyAdministered Tribal Areas (FATA) fall under the executiveauthority of the Federation. In terms of Article 247 read

64 Rashid Ahmad Khan, “Political Developments in FATA: A Critical Perspective,” in P.I. Cheema and M.H. Nuri, eds., Tribal Areas of Pakistan: Challenges and Responses (Islamabad: IPRI, 2005), 27–28.

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with SRO 109 issued on June 25, 1970, the administrativepowers with respect to FATA vest in the president ofPakistan who appoints the governor of Kheyber Pakhtunkhwa(then the North West Frontier Province) to act as his agentfor FATA to exercise executive authority in these areas, insuch manner and to such extent as the president may directfrom time to time. The agent to the president assisted inhis functions by such officers as may be appointed for theaffairs of FATA.Since the fundamental rights given in the Constitutionextend to the whole of Pakistan, these rights also extend toFATA as the area is part of Pakistan. However, enforcementof these rights through the high courts and the SupremeCourt under Article 199 and Article 184(3) respectively iscurtailed. This signifies that though fundamental rights areavailable to the residents of FATA, an ouster of thejurisdiction of courts precludes their enforcement.

Administrative StructureThe Federal Government through Provincial Governor and thePolitical Agent governs the tribal areas of Pakistan. ThePolitical Agent exercises a mix of extensive executive,judicial and revenue powers and has the responsibility ofmaintaining law and order in the tribal areas. He isassisted by a number of Assistant Political Agents,Tehsildars and Naib Tehsildars, as well as members fromkhassadars, levies and security forces.The Sandeman system or khassadar system was named after SirRobert Sandeman, who as the first agent of the GovernorGeneral in Balochistan, used local tribes for the purposesof policing the tribal area. Khassadar regiments took theplace of the British Army in tribal areas. The system ofkhassadars, or tribal police, was somewhat successful inBalochistan. The British formally institutionalizedkhassadars in tribal areas in 1922. This force was raised, ineach agency, from various tribes, as designated by localmaliks in the agency on quota system fixed for tribes who areresponsible for maintenance of law and order in respectiveareas. The khassadars are an important form of patronage. They

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provide their own guns and ammunition to protect roads andother government installations and provide safe passage totravelers but are paid salary by the political authoritieswithout being entitled to pension. The khassadars also manthe checkpoints where the tribesmen deposit their gunsbefore leaving for the settled areas and pick them up againon returning to the tribal areas.65 Being illiterate anduntrained, their performance remains low.66 Bajaur, Kurramand Orakzai Agencies also have another force called theLevies under the command of the Political Agent, which isrelatively better organized. The first of the Levies wascreated in 1895, while Orakzai Levies was enlisted in 1973;Bajaur Levies and Kurram Levies were enlisted in 1981. Inaddition, Frontier Corps, also called the Scouts, aregarrisoned in all tribal agencies for security and law andorder called to deployment by the direct order of thePolitical Agent. As part of his administrative functions, the Political Agentoversees the working of line departments and serviceproviders and plays a supervisory role for developmentprojects and chairs an agency development sub-committee thatrecommends proposals and approves development projects. Healso serves as project coordinator for rural developmentschemes. Adult franchise introduced in FATA in 1996 enabled residentsof FATA to directly elect, on a non-party basis, 11 generalmembers to the National Assembly and 8 general seats in theSenate. FATA lacks representation in NWFP’s provinciallegislature. While the constitution mandates representationfor FATA in the national parliament, the parliament cannotlegislate on any matter concerning FATA. Not being aprovince, there is no Provincial Assembly for FATA, which isdirectly administered with by Governor KP, in the tribalareas, supported by the FATA Secretariat, that works under65 Syed Iftikhar Hussain, Some Major Pukhtoon Tribes along the Pak-Afghan Border, 18.66 Khawaja Daud Ahmed and Aftab Durrani, interviews by author on November 7, 2012 and Oct 12, 2012. There are currently 16,828 permanent khassadars in FATA.

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the Governor as the chief executive and is headed since 2006by Additional Chief Secretary (ACS FATA). ACS FATA isassisted by four secretaries and a number of directors. In the tribal areas, any projects have to be first approvedby the federal government, then the provincial government,then the Political Agent, and then the tribes themselves. Itdoes not follow a linear progression; rather, it has to gothrough multiple channels and people and offices. Projectimplementation is now conducted by line departments of theCivil Secretariat FATA.67 For development expenditure, thegovernment provides a block allocation from the PublicSector Development Plan to the FATA Secretariat to allocateaccording to its development priorities. The FederalGovernment also provides separate funds for particularprojects that may often be donor-assisted. Parliamentariansreceive funds for their respective constituencies fromfederal programs such as the Khushhal Pakistan Program. Overthe years, projects under the FATA Annual DevelopmentProgrammes (ADPs) have resulted in huge throw forwardliabilities.

The Maliki SystemThe new Government of Pakistan accommodated the tribes bycontinuing the Maliki System because it provided a method ofconnecting the state to the tribes without the requirementof new agencies and new administrations aimed directly atpenetrating the tribal areas to make contact with the peoplethere.68 Pakistan’s decision to continue its use of theMaliki System following Jinnah’s death was reinforced by theuse of the same system in Afghanistan. Leaders in theGovernment of Pakistan perceived that the Afghan government

67 http//FATA.gov.pk, accessed 5th November, 2012.

68 Rashid A. Khan. “Political Developments in FATA: A Critical Perspective,” in Tribal Areas of Pakistan: Challenges and Responses. Islamabad: IRPI (2005): 27.

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was successfully using the Maliki System to enforce itsauthority.69 Maliks and lungi holders are influential members of theirrespective tribe or clan who work as local-levelintermediaries between the administration and the tribesreflecting the continuity of paternalistic indirect colonialrule in FATA. The Political Agent, with the consent of thegovernor, grants tribal elders the status of malik on thebasis of male inheritance. He can also arbitrarily withdraw,suspend or cancel malik or lungi status. Maliks receivefinancial privileges from the administration in line withtheir tribe’s cooperation in general support to thegovernment. Under the FCR of 1901, a malik is entitled to astipend and has the right to serve in the Electoral College,the Agency Council to become a member of a jirga.70 Maliks canalso act as government contractors, a role that enables themto profit financially from government-funded developmentprojects.71 Prior to the introduction of adult franchise in1996, maliks also were members of the National Assembly’sElectoral College.The Maliki System has failed to bridge the gap between thestate and the people of the FATA for two reasons: a) becausethese individuals are not elected representatives, itseparates the people from their government and inhibitsintegration, and b) the Maliki System only motivates andinspires cooperation among the maliks and lungis, because itallows them to exploit the system for their own benefit.72

Allowances and subsidies were still apportioned inaccordance with each individual’s hereditary standing withinthe tribe. The creation of privileged positions withhereditary rights is fundamentally at odds with the69 Ibid. 31. What the government failed to realize was that the Afghan government was not concerned with elevating the other tribes to the samelevel as the Pakhtuns living in Kabul. The Afghan government, which was dominated by Pashtuns at the time, wanted to solidify Pakhtun power while keeping the other tribes pacified.70 World Bank, Traditional Structures in Local Governance for Local Development.71 Ahmed, Social and Economic Change, 49.72 Iftikhar H. Malik. State and Civil Society in Pakistan: Politics of Authority, Ideology andEthnicity (New York: St Martin’s Press, Inc., 1979), 21.

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egalitarian Pakhtun customs. The lure of privilege andbenefits led to a rapid increase in maliks over the decades,giving rise to the saying that “every man is a malik untohimself,”73 and diminishing their representativeness.According to Ahmed, the Maliki System created new modes ofdeviant behavior that were abhorrent under the Pakhtunwalibut became permissible given the new incentives.74

Frontier Crimes Regulation – a critical evaluationThe governing law in tribal areas is FCR in illaqa sirkar thatis followed in about 27% of the tribal area, while tribalcustoms or Riwaj is followed in illaqa ghair nearly 73% of thetotal FATA area.75 The genesis of FCR started in 1848 withoccupation of six Frontier districts. A more encompassingset of FCR emerged in 1871 as a special law for the wholePashtun region. The Regulations were further modified in1873 and again in 1876 and1887.76 FCR, however, wereformally enacted in 1901 and remained applicable over theprovinces of KP and Baluchistan besides the seven tribalagencies and six frontier regions. FCR was withdrawn in 1956from KP and in 1973 from Baluchistan. FCR is a complex body of laws that comprises six chapters,sixty-four sections, and three schedules, Section 40 of FCRbeing the most infamous. Under the provisions of the FCR,the Political Agent can exercise an enormous amount of powerover the tribes. The agent administers the tribes livingwithin his designated Political Agency in accordance withtribal customs. For the most part, the Political Agent doesnot interfere with domestic issues; those are left to thetribes, their code of Pakhtunwali and the traditional justicestructure of informal (olasi) jirga. Section 40 empowers thepolitical administration to jail anyone for three yearswithout assigning a reason. The Political Agent can order73 Ahmed, Resistance and Control in Pakistan, 23.74 Ahmed, Resistance and Control in Pakistan, 24.75 Khawaja Daud Ahmed, interview by author, Oct. 21, 2012.76 Testing FCR on the touchstone of the Constitution, paper presented byDr. Faqir Hussain, Secretary, Law & Justice Commission of Pakistan Islamabad as published in HCP, A bad law nobody can defend, (Lahore: Human Rights Commision of Pakistan, Peshawar Chapter, 2005).

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arrest of members of any tribe who are “accused of thebreach of peace or for the purpose of maintaining goodbehavior to execute a bond” (Sections 40, 41), failing whichthe accused or male members of his tribe can be imprisonedfor up to three years (Sections 43, 44) without any right ofappeal in any civil or criminal court (Section 48). The termof imprisonment can be extended if the PA is of the opinionthat it should be extended further (Section 45).77 The Political Agent is authorized to use the tribal customof baramta when dealing with hostile tribe members, whichincludes seizing any amount of property or arresting anynumber of individuals he suspects are responsible forillegal acts. In addition to these powers, the PoliticalAgent can prevent an individual, or even an entire clan orsub-clan, from communicating or interacting with any otherindividual or clan or sub-clan. If the Political Agentdetermines that a settlement presents a threat to the state,he can order it to be destroyed. Under FCR, the governmentis allowed to ban political demonstrations and activities.It used to be legal for a private citizen of the FATA toaccuse an individual of breaking the law, to have himarrested under the authority of the FCR, and to beimprisoned for up to five years - all based solely onsuspicion, a practice that was outlawed in 1963 because ofits abuse by khans and maliks who used the law to increasetheir wealth and land.78

Sections 20 and 21 of FCR seizure of property of an entiretribe, that is considered hostile or unfriendly, and evenallows their houses to be demolished (Sections 33, 34). Incase a tribe is held to be guilty of conniving at crimes,the money that its members earn from government schemes orjobs can be forfeited under Section 26. If someone damagesgovernment property in Area A, the Political Agent can77 Imtiaz Gul, The Most dangerous Place, Pakistan’s Lawless Frontier, (Penguine Books, 2010), 45,4678 Kahlid Aziz, “The Frontier Crimes Regulation and Administration of the Tribal Areas of Pakistan,” in Tribal Areas of Pakistan: Challenges and Responses. Ed. Pervaiz Iqbal Cheema and Maqsudul Hasan Nuri. (Islamabad: Islamabad Policy Research Institute, 2005), 124-126; Spain (1963), 155.

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punish people from Area B on mere suspicion and impose heavypenalties.79 Additionally, tribesmen living within eightkilometers of the border of the district cannot undertakeany construction without permission. An infamous clausedirects that no hujra, a place central to Pakhtun culture as asocial meeting place,80 can be constructed or used as suchwithout the approval of the PA. The FCR also empowers the Political Agent to act in in ajudicial capacity. A jirga, whose members are typically maliksor prominent elders selected by the PA, is given theresponsibility to resolve both criminal and civil disputesin order to deliver a judgment. This judgment, however, isonly a recommendation that must be approved by the PoliticalAgent. No appeal lies to a court against the PA’sdecision.81 The law contains no concept of an independent judicialauthority or a court of law to dispense free and fairjustice contrary to the mandate of the Constitution.82

According to a report that details a written record ofinterviews with 1500 common men and women of FATA who liveunder the umbrella of tribal traditional justice, the olasi(informal or traditional) jirga system is a trusted andrespected form of dispute resolution and justicedispensation in FATA which is preferred by all locals sinceit is traditionally deep rooted in Pashtun society. The FCRor official Jirga, on the other hand, was found to be unfairby 40% of respondents, compared to 70.13% who believed theolasi jirga delivered fairer decisions. Around 45% believe thatthe Jirga can resolve both civil and criminal disputes andhas the ability to reintegrate offenders back into thecommunity (40%); this is attributable to close knit

79 Khalid Aziz, Tribal Areas of Pakistan, Challenges and Responses, Paper for the Regional Institute of Policy Research, (Peshawar, September 2005).80 Ibid. 46.81 Mumtaz A. Bangash. “FATA: Towards a New Beginning”, in Tribal Areas of Pakistan: Challenges and Responses. Ed. Pervaiz Iqbal Cheema and Maqsudul Hasan Nuri, (Islamabad: Islamabad Policy Research Institute 2005), 62-63.82 The preamble as well as Article 2-A and 175 of the Constitution provide for an independent judiciary.

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traditions and customs which promote deterrence andostracise any person violating the jirga’s decisions. About40% agreed with the statement that it has the potential toviolate the rights of women and minorities.83

Frontier Crimes Regulations or FCR were laws tailored by theBritish is based on the premise of suppression of crime byinfliction of the severest possible punishment rather thanadministering justice.84 Because of the severity ofpunishments provided and the extensive powers of thePolitical Agent, FCR provisions are often condemned for theviolation of human rights in the name of governance and havebeen referred to as ‘Black Laws’ that constitute a paralleljudicial system in Pakistan.85 The FCR denies the accuseddue process of law.86 More specifically, many of itsprovisions - substantive as well as procedural, e.g.,selection of jirga members (Section 2), trial procedure incivil/criminal matters (Sections 8 & 11), the power toblockade hostile or unfriendly tribe (Section 21),demolition of and restriction of construction of hamlet,village or tower on frontier (Section 31), removal ofpersons from their places of residence (Section 36), mannerand method of arrest and detention (Sections 38 & 39),security for good behavior (Sections 40, 42), imposition andcollection of fine (Sections 22- 27), are ex facie repugnant tothe Constitutional provisions like Articles 4, 9, 10, 13,14, 24, and 25 and are contrary to Article 8 of theconstitution.87

Attempts to Reform FCR83 Naveed A. Shinwari, Understanding Jirga: Legality Legitimacy in Pakistan’s FederallyAdministered Tribal Areas. Community Appraisal and Motivation Programme(CAMP), Pakistan, 2011. http://www.camp.org.pk/node/342 (accessed on Oct19, 2012).84 Shaheen Sardar Ali and Javaid Rahman, Indigenous Peoples and Ethnic Minorities of Pakistan: Constitutional and Legal Perspectives, (Surrey: Curzon 2001), 53.85 Ibid.86 Ibid. 87 Article 8 of the Constitution provides that any law or customs or usages having the force of law, in so far as it is inconsistent with thefundamental rights shall be void.

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In 1921, the British formed a North West Frontier Committeeto review FCR that recommended maintaining of theseRegulations because they provided a cost-effective andconvenient means of justice to the tribesmen. Another nine-member committee for the purpose of suggesting changes toFCR was setup in 1931 under Justice Naimatullah of AllahabadHigh court that recommended repeal of these regulations asthey created a separate judicial system in India. There have also been attempts to revise and reform the FCRafter independence. As early as 1954, Justice A. R.Cornelius in the case of Sumunder v. State88 referred to FCRproceedings as “obnoxious to all recognised modernprinciples governing the dispensation of justice”. Hetherefore concluded that in the circumstances, it wasimpossible to preserve public confidence in the justness ofthe decision made under the FCR. In 1958, a judicialcommission recommended withdrawal of FCR from Quetta andQalat divisions. Another commission in the same year underJustice S.A. Rehman and subsequently in 1970 under JusticeHamoodur Rehman recommended abolishing of FCR. A committeeheaded by Justice Ajmal Mian, a retired Supreme Court judge,also deliberated on FCR and drafted recommendations.89 The High Court of West Pakistan in the case of Dosso v. State90

exercised jurisdiction despite the ouster clause, underArticle 178 of the 1956 Constitution on the ground thattribal areas were included within the areas of Pakistan andthe citizens residing therein were entitled to the benefitof fundamental rights, guaranteed by the Constitution. Thecourt struck down certain provisions of the FCR for beingrepugnant to Article 5 (equality before the law and equalprotection of law) of the Constitution. On appeal to theSupreme Court, Justice A.R. Cornelius, however, declaredthat the Supreme Court had no jurisdiction over the tribalareas. Voices of dissent appeared in reaction to JusticeCornelius’s verdict. Justice Kayani stated that the jirga88 PLD 1954 FC 228.89 Ghulam Datageer, “So far, so futile”, Herald, volume 43, September 2011.90 PLD 1957 Quetta 9.

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system was arbitrary and that hard evidence was not alwaysrequired.91 In 1984, the Federal Shariat Court reviewed theFrontier Crimes Regulation, 1901 (Regulation III of 1901),the Frontier Crimes (Amendment) Regulation 1982 (RegulationNo.1 of 1982) and the Frontier Crimes (Amendment) Regulation1983 (Regulation No.II of 1983) and directed the FederalGovernment to repeal the Frontier Crimes Regulation, 1901and consequential repeal of the remaining two regulations.However, soon after the judgment, FATA was excluded from thejurisdiction of this Court through President Ordinance 5 of1984.92 About a decade ago, a special tribunal was formed, calledFCR Tribunal, comprising Secretary Law, and Home Secretaryto NWFP Government. At present all revision petitions inFATA are made to the FCR Tribunal at Peshawar. In August2009, the government announced a new reform package forFATA. In 2011, changes were introduced in FCR 1901 by addingfive new sections and amending about a dozen sections. Someof these important changes include determination of atimeframe for the disposal of references to the jirga as 90days, which (Sections 8 & 11), mandatory requirement ofproducing an accused before the competent authority within24 hours (Section 11), insertion of a new provision for bail(Section 11A), exemption of women, below 16 and above 65years of age from collective responsibility (Section 22),requirement of following a graduated response undercollective responsibility: the first step shall lie againstthe hostile members, second against Plareena or maledescendants of the paternal grandfather, the third againstthe sub-section of the tribe, the fourth against the sectionof specific tribe and finally action against any othersection of the tribe (Section 21), procedural check on thepowers to arrest legally binding the PA to conduct an

91 Durab Patel, Testament of A Liberal, (Karachi: Oxford University Press, 2000), 58.92 Leading Judgements of the Federal Shariat Court. Available at http://federalshariatcourt.gov.pk/s16.html, (accessed on November 21, 2012).

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inquiry before taking action (Section 40), reduction inlength of detention under Sec 40 from three to two years(Section 45), investing the FATA Tribunal as a High JudicialForum with powers similar to a High Court under Article 199of the Constitution (Section 55 A), and provision for awardof compensation for expropriation of property at theprevailing market rates to be determined as per the LandAcquisition Act of 1894 (Section 56). In addition, all fineshave been made auditable as per the Audit and Account rules(Section 58). Despite government claims, fears of misuse ofpower may make recent FCR amendments effort asinconsequential.The rationale behind the FCR derived from the Britishrevolved around their policy of mediated rule, though ithas been argued that the actual purpose of the FCR was“...to keep them (villagers) from a universally recognizedjudicial system and so deny them the basic human right ofequality before law and equal protection of law.”93 The FCRwas never a policy for promoting integration. The broadscope of powers conferred on the Political Agent combinedwith the relatively narrow government or public oversightwas designed to pacify and appease the tribes rather thanestablishing state authority. The system’s fundamental flawis that co-opting the traditional tribal leadershipundermines the social dynamics essential to its legitimacyand effectiveness. Moreover, hereditary right holding isantithetical the ideals of the Pakhtunwali.

SECTION III - EVOLVING SOCIO-ECONOMICLANDSCAPE AND POWER STRUCTURES

The socio-economic environment and loci of power in FATAhave been changing down the years. Many factors havecontributed to acceleration of the process since 1980s. Thecardinal changes and the variables, most being

93 Shaheen Sardar Ali and Javaid Rehman, Indigenous Peoples and Ethnic Minorities of Pakistan: Constitutional and Legal Perspectives, (Richmond: Curzon, 2001), 52.

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interconnected or overlapping, that influenced them arediscussed as follows:

Empowerment of the MullaIn general, religious oligarchy had little politicalauthority in tribal society and only maliks were perceived tobe dominant in policy making or decision-making and mullahswere out of the Jirga circle. Although mullas are secondary tothe lineage elders and are not recorded in the genealogicallineage, the position of respect that they enjoy enablesthem to become rebellious figures, especially on matterspertaining to the defense of Islam. Numerous religiousleaders, in addition to the Mulla Powinda and the Faqir ofIpi, led rebellions throughout the frontier’s history. SirEvelyn Howell, who served in Waziristan as a from 1905-1926,described the mulla as “the dominant factor in Mehsudpolitics in this period,” underscoring the threat ofreligious leaders to the British and the maliks whocooperated with them.” 94

FATA provided an ideal center of gravity during the Afghan-USSR conflict through its forbidding geography, centuries oflawlessness, and lack of governance. The embedding of themujahideen in the tribal areas was facilitated by GeneralZia’s Islamization process in Pakistan and Islamabad’s closerelationship with Saudi Arabia and the UAE, which made itconducive for the increase in the political clout of theIslamic parties. This included the very substantial growthin the number of madrassas95 that spawned the mujahideenfighters. During 1979-1987, the quality of education inmadrassas lost its relevance because of the addition ofprominent ideological elements necessary for thecontinuation of jihad industry, which engendered change inthe very shape of the Deobandism in North West of Pakistan.The education system changed from the model centered arounda learned alim to a more “freelance” or “franchise model”which facilitated the proliferation of madrassas and their

94 Howell, Mizh: A Monograph on Government’s Relations with the Mahsud Tribe, 42.95 Ahmed Rashid, Taliban, Militant Islam, Oil and Fundamentalism in Central Asia, (Yale: Yale University Press, 2001), 89.

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radical ideologies.96 The role and character of the mullaalso changed significantly during this process. White argues that through the radicalization of Islamicmovements in Pakistan, Deobandism in Pakistan has been“Pashtunized”. They were mostly from “poorly educated,ideological hardened, disenfranchised ulema’, and aimed atthe ‘spread of conservative Pashtun values than with anygrand Islamic vision. The Deobandi experience in thefrontier had produced over time a syncretic form of SunniIslam, and one in which as a practical matter, Pashtunwalitrumped traditional Hanafi interpretations.”97

Want of a viable, legitimate political alternative thatcould empower disaffected elements in the FATA helped createthe conditions for extremist elements to flourish. Whilepolicies in 1980s and 1990s benefited high ranking ulema,the lower level mullas were dissatisfied with theIslamization and became rebellious.98 Being the product oftheologically shallow background, these mullas had noemployment outside of the jihadi line of work and wereattracted to militant organizations.As political participation spread through the tribal areassince the extension of universal suffrage in 1997, themullas, who rely on their organizational skills and moralauthority through Islam to maintain their positions ofrespect in their communities, became the prime beneficiariesand emerged as arbitrators between the tribes and the state.The traditional role of the mosque has also changed and nowit also serves as a hujra. The ulema’s active support of theTaliban, combined with the Pakistani military’s operationsin the tribal areas that resulted in numerous civiliancasualties, has only enhanced the standing of the mullas andtheir supporters. Yet individually, the mullas exhibit96 Ibid. 31-32.97 Joshua. T. White, Pakistan's Islamist Frontier: Islamic Politics and U.S Policy in Pakistan’s North-West Frontier, (Arlington: Center on Faith and International Affairs. Religion and Security Monograph series, 2008), 35.98 S.V.R. Nasr, “The Rise of Sunni Militancy in Pakistan: The Changing Role of Islamism and the Ulama in Society and Politics.” Modern Asian Studies 34 (1): 2000, 139–80.

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different strains of religious ideology that weakens theirunity over tactical decisions.99

Effects of MilitancyThe momentum of the resistance force based in FATA in 1980sreached a level that required an extraordinary amount ofeffort to demobilize it.100 Though the money which dried upafter the Soviets retreated, the alternate economy continuedto exist. The Government’s avidness for increased influencein Afghanistan created a vacuum in the region that wasfilled by other individuals and organizations. The tribalsended up focusing their allegiance regionally, which likelyreinforced Pakhtun identity rather than Pakistani identity. With links developed between Afghan, Pakistani and Arabgroups during the 1980s still active,101 and offeringhospitality, regardless whether the guest is a criminal, afriend or an enemy being an important element of Pukhtunwali,it was easy for foreign militants to settle down in FATA.Battles causing scores of fatalities have been foughtbetween the local residents and these non-Pukhtun militants,particularly in early 2007.102 Interestingly, the areas wheremilitants of foreign origin sought asylum have seen a risein rents of real property besides creating a market nichefor new products like cheese and chocolates.103 Many localpeople perceive political administration and agencies to besupportive of militant activities in FATA.104

Many tribesmen radicalized by the rhetoric of jihad thatstarted almost 30 years with many unemployed youth have beendrawn to join the neo-Taliban groups “as a way of gaining a

99 A disagreement over whether to participate in the 2008 national elections caused disintegration of the MMA in December 2007.100 Humayun Khan. “The Role of the Federal Government and the Political Agent,” in Tribal Areas of Pakistan: Challenges and Responses. Ed. Pervaiz Iqbal Cheema and Maqsudul Hasan Nuri. Islamabad: Islamabad Policy Research Insititue 2005, 115.101 Rohan Gunaratna and Muhammad Amir Rana, Al Qaeda Fights back inside Pakistani Trial Areas, (Lahore: Pak Institute for Peace Studies, 2007), 48.102 Waziristan Clash toll rises” in Dawn – the Internet, March 22, 2007.103 Dr. Musarrat Hussain, interview by author, Oct 21, 2012.104 Dr. Musarrat Hussain, interview by author, Oct. 21, 2012.

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livelihood or enhancing their social importance andpower.”105 They also include an increasing number of Punjabismostly from landless families. They cooperate closely withal-Qaeda fighters.106 The opportunity costs for joining arebellion are low when per capita income is low and there isno prospect for economic growth.107 As Collier has stated,“Low income means poverty, and low growth meanshopelessness. Young men, who are the recruits for rebelarmies, come pretty cheap in an environment of hopelesspoverty. Life itself is cheap, and joining a rebel movementgives these men a small chance of riches.”108 Given economicunderdevelopment, rent-seeking opportunities and high levelof corruption, the tribsmen, especially the youth, areincreasingly being driven into the arms of the militants.109

Taliban fighters reportedly earn as much as $300, aconsiderable sum for many jobless tribesmen.110 Militancy has also caused migrations from tribal areas tocities at a higher rate to perfunctory rural-urbanmigration. Over 40% of FATA GDP is estimated to come fromoutside FATA. A number of people from FATA have engaged non-exclusive trade centers in major cities of Lahore, Karachi,Rawalpindi, Islamabad and Peshawar.

Impact of Military OperationsThe army was largely absent in the Frontier, which wasentrusted to the Frontier Corps, a federal paramilitaryforce assembled from local tribesmen and designed to helplocal law enforcement.111 With the exception of small-scaleoperations in the tribal areas, the Pakistan Army had stayed105 International Crisis Group, “Pakistan’s Tribal Areas: Appeasing the Militants,” in International Crisis Group’s Asia Report, No 125 (December, 11, 2006), 2.106 Rohan Gunaratna and Muhammad Amir Rana, Al Qaeda Fights back inside Pakistani Trial Areas, (Lahore: Pak Institute for Peace Studies, 2007), 48.107 Paul Collier et al., Breaking the Conflict Trap: Civil War and Development Policy, 4.108 Paul Collier, The Bottom Billion: Why the Poorest Countries are Failing and What Can be Done About it, (New York: Oxford University Press, 2007), 20.109 Anwar Ali, interview by author, Oct. 23, 2012.110 Mark Sappenfield, “In Northwestern Pakistan: Where Militants Rule,” The Christian Science Monitor, World Section, February 28, 2008, 6.

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out of FATA till 2002, when then President, General PervezMusharraf, pressured by Washington, deployed the Pakistanarmy to FATA to fight an alliance between foreign and localmilitants. Military incursions into the region have led to an increasein the number of casualties and displaced civilians. Areport by Crisis Group stated, “Badly planned, poorlyconducted military operations are also responsible for themilitancy in the tribal belt, where the loss of lives andproperty and displacement of thousands of civilians havealienated the population... The use of indiscriminate andexcessive force undermined the military’s local standing.”112

Because of distrust of the government and fear of militantkillings, people have little incentive to fight rebelleaders or to provide information to the government againstthem. Illiteracy further breeds mistrust and violence asevinced by refusal of parents of children to polioinoculation. The Pakistani army’s intervention in FATA, combined withactions taken by the neo-Taliban insurgents targetingpolitical agents and tribal maliks, has fueled the collapseof the political agent system in several of the tribalagencies.113 By bypassing the authority of the politicalagent when conducting armed operations in the FATA, themilitary inadvertently disempowered its traditional conduitof influence in the tribal areas.114 In 2011, the government promulgated Action (in Aid of CivilPower) Regulation 2011 for FATA to give powers to the armedforces against the militants in the conflict areas. Thisregulation is an instance of lex specialis applicable only whenrequired by imperative reasons of security. The regulationsprovide legal cover to the “all acts of armed forces” duringmilitary operations with retrospective effect since Feb 1,111 Hassan Abbas, “Transforming Pakistan’s Frontier Force,” Terrorism Monitor, The Jamestown Foundation 5, no. 6 (March 29, 2007), 5.112 International Crisis Group, Pakistan’s Tribal Areas, 15.113 Khalid Aziz, Extending Stability to Pakistani Tribal Areas (Peshawar: RIPORT, 2008), 7ff.114 Muhammad Adil Khan, interview by author.

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2008. It allows for the internment of ‘miscreants’, thedefinition of which broadly includes: terrorists, non-stateactors, and nationals or foreigners, who intend to commit orhave committed offences under the regulation, until a formalnotification terminating action in aid of civil power ispassed by the federal government. Following thenotification, the detained personnel would again be affordedthe due process of law by handing them over to the civil lawenforcement agencies.

Criminalization of Political EconomyMajor source of livelihoods in FATA is agriculture, which ismarked by low level of productivity. About 86% of wheat and83% of cereals are imported to FATA annually. The prices offood commodities are higher as compared to the onesprevailing in other parts of KP, e.g., wheat flour price is7% higher than the price in Peshawar.115 Collusion of thenational security establishment, international actors,tribal political administrations and their protégés, duringthe Afghan jihad, in the 1980s and 1990s, not only used, butalso expanded the existing space for illegal practices inthe name of tribal customs and traditions. The system ofpatronage provided by the FATA administration and the impactof the Afghan jihad fomented a culture of crime supported bythe proliferation of weapons that was endemic throughout thetribal areas by the 1990s. To ensure loyalty, political agents turned a blind eye tosmuggling on the Afghan border, creating a burgeoningeconomy of illicit goods and prosperity for the system’sbenefactors.116 The general economy of the tribal areas hascome to be heavily linked to the thriving trade in arms,drugs, and cross-border smuggling of electronics, causingsignificant revenue losses in uncollected duties and taxesbringing profit, power, prestige and connections withauthorities. This trade also provides the Afghan Taliban andthe militants in the FATA with funds and arms. The army has

115 Rapid need Assessment of FATA, World Food Program, February 2007, documents.wfp.org/stellent/public, accessed on 17th November, 2012. 116 Behuria, “FATA: The New Epicenter of Terror.”

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not prohibited sale of guns and ammunition in FATA, whichsupplies the same to the whole of Pakistan.117 The lack ofeffective governance in the FATA and its proximity to thetowns and cities of the KP has created a cycle of violencewhere criminals, including drug-traffickers and kidnappers,seek refuge from the maliks, who oblige for a fixed price.118

The porous border with Afghanistan further facilitatestrans-border mobility of criminals.

Emerging middle classEducational policies and job quotas in the FATA facilitatedthe emergence of a new class—an educated middle class—integrated into Pakistan’s socio-political structure andadministration. Yet the benefits of the FATA’s developmentare not dispersed evenly to all tribesmen. The beneficiariesof reforms are increasingly the second generation of theearlier beneficiaries who are mostly settled in Pakistanicities outside of the FATA. Therefore, these beneficiariesdo not greatly advance the development of the FATA’ssociety. This new class, however, has altered the malik’straditional authority. FCR and its doctrine of collective responsibility havestiffled the growth of financial services and industry inFATA and the ongoing conflict in the FATA and theAfghanistan has increased the protection cost of publicproperty, life and facilities in the area as ever before119

and have exacerbated quality of service delivery to thepeople. There are banks in FATA, but no one can borrow moneyby mortgaging property as land ownership is collective. Noland settlement has been done in FATA (excluding Kurram). Asa result anyone who wants to borrow money goes to theinformal markets. The current interest rate for borrowing in

117 Claude Rakistis, Pakistans Tribal Areas: A Critical No-Mans land. Paper deliveredat Webster University Forum, Geneva, 25th April 2008. geopoliticalassessments.com/Pakistan_s_Tribal_Areas.pdf118 Ashkok K. Behuria, “FATA: The New Epicenter of Terror,” Journal of Peace Studies 9, no. 3 (May-June 2002), http://www.icpsnet.org/description.php?ID=218119 Planning and Development Department, FATA Secretariat, Cost of Conflict in FATA (Peshawar, Pakistan: FATA Secretariat, April 2009).

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Pakistan is 5-8% while the interest rate in informal marketsin FATA is 24-48%.120 Such a high interest rate is difficultto be returned on any legal business.

Erosion of traditional power pointsSelective patronage based on tribal lines not only createdpowerful interests to thwart prospects for development andreform, but also created stark inequities that stood incontrast to the concept of pakhtunwali that the FATA purportedto support. The pressures of change throughout the tribalareas also created new fissures in society between those whobenefited from the Maliki System’s patronage and who didnot.Breakdown of the authority of maliks started in 1980, whenthey were marginalized and instead religious clerics wereused from Afghanistan to the FATA to unite the tribes in acommon cause against Soviet threat. By bribing local eldersand finding refuge under the Pukhtunwali code of hospitality,foreign militants were able to fight the government and gainsupport from many tribes. However, these new militantsinfringed upon the tribal system by establishing their owngovernance structures and even beheading tribal elders whodid not support them. The process was accelerated after 9/11 and the system’spurported legitimacy, based on respect for local custom alsoeroded rapidly. The intensely ideological nature of bothlanguage and practices of the Taliban includesdetribalization and attack on customary law121 and they haveattacked tribal structures by systematically killingelders.122 Over 600 influential maliks, who were with thegovernment, have been killed in a number of suicidal attacks120 Muhammad Adil Khan, interview by author.121 Mariam Abou Zahab and Olivier Roy, Islamist Networks: The Afghan-Pakistan Connection, (New York: Columbia University Press, 2004), 52-71.122 John H. Cathell, “Human Geography in the Afghanistan-Pakistan Region:Undermining the Taliban Using Traditional Pashtun Social Structures.” Masters Thesis, (Naval War College, Newport, RI. 2012),15. http://www.dtic.mil/cgi- bin/GetTRDoc?AD=ADA502894&Location=U2&doc=GetTRDoc.pdf, (accessed on 5th December, 2012).

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and bomb blasts.123 The active prohibition of politicalparties, media, judicial institutions made the antiquatedadministration ill-prepared to steer the desire for changein the FATA. Meanwhile, the mulla’s successful role in thejihad and the greater perception of purity they enjoyed,resulting from their exclusion from the administration ofthe tribal areas, endowed them a sense of legitimacy thatthe tribal maliks had long lost.

Culture of Rent-seekingRent-seeking, defined as the effort to acquire access to orcontrol over opportunities for earning rents, or monopolyprofits, diverts efforts from improving overall economicactivity and welfare to inefficient activities, such aslobbying and outright bribery to obtain preferential accessto rents or to create rents through policies.124 It hasvirtually no benefits for the economy or people in general,and only fattens the pockets of a few at the expense ofmany. Collier et al.125 argue that rent-seeking often makes acountry more prone to conflict, especially where politicaland social cleavages are already present. Special privilegesgranted to one group create resentment, especially in asociety that is already economically underdeveloped.Many have criticized the Political Agent for exploiting hisposition for personal enrichment by selective distributionof patronage to maliks with no input from the localpopulation in development projects.126 In addition, a complexhierarchical system of government leadership that existsbelow the Political Agent and there are many rent-seekingopportunities that arise in these positions. Most of therents are generated from trade activities, given thescarcity of arable land. Political Agents tax all the goods

123 Planning and Development Department, FATA Secretariat, Cost of Conflict in FATA (Peshawar, Pakistan: FATA Secretariat, April 2009).124 Jacqueline Coolidge and Susan Rose-Ackerman, “High-Level Rent Seekingand Corruption in African Regimes: Theory and Cases, Working Papers and Articles (WPS 1780), (The World Bank, 1997), 3.125 Paul Collier et al., Breaking the Conflict Trap: Civil War and Development Policy, 4.126 International Crisis Group, Pakistan’s Tribal Areas, 9.

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coming in and going out of their respective Agencies. Theyissue permits for all goods passing through the Agencies. Itis not clear, even to many seasoned traders, whether taxescollected by Political Agents are sanctioned by government,or whether they are meant for the pockets of individuals inthe political administration.127 Rent-seeking activities in FATA have concentrated power andincome from weapons flow and trade of illegal goods into thehands of the few at the expense of the rest of thepopulation in FATA. Despite little or no governmentregulations in the FATA, the barriers to entry are high andthose who cannot afford to pay rents cannot activelyparticipate in the economy. Additionally, a monopoly onbusiness trade and economic activities by the Mahsuds hasleft Wazirs, Dawards, Bhitannis and other tribes out of thescheme.128 Drug trade is concentrated mainly in the hands ofviolence entrepreneurs and drug barons,129 for example, theTaliban in Afghanistan by 2001 generated revenues from thenarcotics industry of nearly $8 billion.130 The position ofPolitical Agent and the system of maliks has come under firefor breeding corruption. The rhetoric that government iscorrupt has also been employed by violence entrepreneurs.With flowering of militancy, the oligoarchy of rent seekinghas heavily shifted to the various Taliban factions in manyagencies.131

SECTION IV - REFORM OF THE TRIBAL AREASGOVERNANCE

From political and developmental perspectives, FATA hasknown four distinct periods, with the contours of a fifth

127 Interviews by author, Oct.-Nov. 2012.128 Ibid.129 International Crisis Group, Pakistan’s Tribal Areas, 1.130 Yossef Bodansky, Bin Laden: The Man Who Declared War on America, (New York: Random House, 2001), 315.131 Muhammad Adil Khan, interview by author, Nov 19, 2012.

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one beginning to emerge following the February 2008 federaland provincial elections in Pakistan.1947-1971As the North West Frontier Province (NWFP) and FATA werebeing included in the Pakistan scheme, the KhudaiKhidmatgars were advocating the establishment of anindependent state for the Pukhtuns - Pukhtunistan,132 an ideaardently supported by Afghanistan and the Congress Party.The Afghan authorities, not recognizing the Durand Line,also demanded that Pakistan provide Afghanistan access tothe sea by giving it a special corridor through Balochistanor creating a free Afghan zone in Karachi.133 One week afterPartition, Governor-General Jinnah sacked Dr. Khan under theadapted Government of India Act, 1935, to forestallexploitation of the Pukhtunistan issue by Afghanistan andIndia.134 The new chief minister, Khan Abdul Qayyum Khan,used a heavy-handed approach, including using the army andair force to suppress disturbances in the tribal areas.135

Shortly after that, the Ministry of State and FrontierRegions (SAFRON) - under the complete administrativecontrol, influence and authority of Jinnah as GovernorGeneral was created for FATA. The Army, which had beenstationed in FATA before independence, was withdrawn.136

Although land reform was prominent on Ayub Khan’s agenda,much of the land that was redistributed was uncultivable.137

His land reforms did not impact FATA at all. The system of132 N. Entessar, “Baluchi Nationalism,” in Asian Affairs, Vol. 7, No 2, Nov –Dec. 1979, p. 79. 133 Khalid Aziz, “Causes of Rebellion in Waziristan”, in Policy Report, (Regional Institute of Policy Research and Training, Peshawar, 2007), 14.134 Sharif al Mujahid, Quaid-i-Azam Jinnah, Studies in ed. L. Ziring, Pakistan: The Enigma of Political Development, Folkestone, Wm Dawson, 1980, 77, (Karachi,: Quai-i-Azam Academy, 1981), 135.135 136 Shuja Nawaz, FATA – A most dangerous place: meeting the challenges of militancy and terror in the Federally Administered Tribal Areas of Pakistan, (Centre for Strategic andInternational Studies (CSIS) Report, 2009).137 Lawrence Ziring, The Ayub Khan Era, Politics in Pakistan, 1958-1969 (Syracuse, N.Y. Syracuse University Press, 1971), 10.

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“basic democracies” in Ayub Khan’s era was also extended totribal areas and representation was granted in national andprovincial assemblies of Pakistan. One member each from anelectoral college of basic democrats was elected to thenational and provincial assembly. Few of Ayub Khan’s reformsimpacted the tribal areas deeply, and those that did tendedto reinforce the existing governance system.1971-1979Though between 1972 and 1977, the development in FATA andthe then NWFP began to marginalize the repeated attempts byAfghanistan to gain supporters for Pashtun nationalism,jirgas were allowed to maintain order without interferencefrom the Government.138 The government under Bhutto, however,established FATA Development Corporation (FATADC) focusingon development through the construction of schools,colleges, hospitals, industrial units and road networks.Apart from infrastructural improvement, quotas werededicated for the people belonging to the region inPakistan‘s educational institutions, federal jobs and civilservice. Electoral Act 1974, entitled every male and femaleto be registered in the list of voters but the PresidentialOrder No. 1/75 known as Preparation of Electoral Rolls(FATA) Order, 1975 deprived the tribals of their right toadult franchise. FATA was given representation in the WestPakistan Assembly during One Unit days as mentioned in both1956 and 1962 Constitutions. Its Provincial representationwas abolished in 1973 Constitution and consequently FATA hasno seats in Provincial Assembly. 1979-2001With the Soviet invasion in Afghanistan in 1979, thepolitical dynamics between Islamabad and FATA took a turnwith the influx of some 3 million Afghan refugees whosettled in NWFP and FATA. The government was unable orunwilling to control the activities of the Mujahideeninsurgents, with some of these rebel groups establishing

138 Spain (1977), 12.

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quasi-government enclaves in the tribal areas.139 Realizingthe damage the presence of these Mujahideen were having onthe local scene, a jirga of elders in FATA demanded in 1985that Islamabad recognize the Soviet-backed government inKabul and return the refugees after having come to anacceptable agreement with the Afghan authorities.140

In 1985, under intense Western pressure to do somethingabout growing heroin trade in FATA, General Zia’s governmentin Pakistan decided to send para-military forces into theKhyber Agency.141 Further, with an aim of preventing aresurgence of the elicit trade, the government decided topermanently station law enforcement agents in the agency andbuild fortified posts in strategic locations.142 There was afeeling that the root cause of the heroin problem in FATAwas the continued implementation of the Frontiers Crimeregulations, the lack of universal adult franchise, the lackof social and political integration with the rest of thecountry and the low level of development which onlybenefited a few maliks.143

In December 1996, Farooq Ahmed Leghari, as the President andchief executive of FATA, implemented a significant policychange with regard to representation and voting rights forthe people of the FATA extended the Adult Franchise Act toFATA, granting all of its inhabitants the right to vote.This reform reflected a further shift in policy towards co-optation and also increased the representation and influenceof the people from the FATA in Pakistan’s National Assembly.However, political parties were formally forbidden fromextending their activities into the agencies, while mullahshad always enjoyed free entry. This, in reality, has139 Hafeez Malik, “The Afghan Crisis and its Impact on Pakistan,” in The Journal of South Asian and Middle Eastern Studies, Vol. V, No 3 (Spring 1982), 46.140 Ahmed Rashid, Taliban, Militant Islam, Oil and Fundamentalism in Central Asia, (Yale University Press, 2001), p.89. Khalid Aziz, Op. Cit., 22. 141 The Muslim, December 31, 1985.142Claude Rakisits, “National Integration in Pakistan: The Role of Religion, Ethnicity and the External Environment”, Ph.D. Dissertation, (Queensland: University of Queensland, 1986), 221.143 Ibid. 343.

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assisted the Islamic parties to further consolidate theirpolitical influence in the area.2001-2008During protracted tenure of former President, GeneralPervaiz Musharraf, FATA witnessed unprecedented instabilityand turmoil. This phase in the region‘s recent history fitsin well with an aspect of path dependency highlighted byPierson - that although change is an ongoing process, it isbounded until something erodes the system.144 For FATA andits denizens, the period after the events of September 11,2001 and subsequent US invasion of Afghanistan in October2001 was the eroding period that Pierson refers to. In 2004,the government introduced agency councils to serve as localrepresentative bodies in the FATA. These councils arecomposed of both elected members - only government-recognized maliks - and members nominated by the PA. Not onlydo agency councils have almost no authority, but there isstill no clear delimitation of their functions and powers.The thrust of the government’s development policies post-2001 thus seems to be on reviving and strengthening, ratherthan changing, the existing FATA system.

2008 – PresentWith debate on governance reform in FATA becoming central,two of the measures the Federal Government elected in 2008considered were repealing the FCR and fully integratingpolitically the tribal areas into the neighboring provinceof KP. In his inaugural speech, the Prime Minister ofPakistan vowed to repeal the obsolete FCR and to bringeconomic, social, and political reforms to the tribal areas.On April 1, his new government announced the formation of afour-member parliamentary committee to look into replacingFCR in FATA.145 By amending Frontier Crimes Regulation, 1901

144 Paul Pierson, “Increasing Returns, Path Dependence, and the Study of Politics”, American Political Science Review, Vol. 94, No. 2 (2000), 251-267.145 Abbubakar Siddique, "Pakistan: new government announces major reforms in Tribal Areas." Dawn, April3, 2008.

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(III of 1901) and in pursuance of the provisions containedin clause (5) of Article 2-17 of the Constitution of theIslamic Republic of Pakistan, the President of Pakistanpromulgated Frontier Crimes (Amendment) Regulations 2011 on25th August, 2011as well as extended the Political PartiesOrder 2002 to FATA. In words of Ayaz Wazir “The introductionof political reforms is certainly a step in the rightdirection. In fact, it would have been much better had sucha step been taken by the present political setup immediatelyafter the government came into power in 2008.”146 However noelection has taken place and no municipal committee has beenset up so far. On 26th November 2010, the FATA Secretariat notifiedconstitution of municipal committees in 14 urban hubsidentified under Tribal Areas Rural-to-Urban CentersConversion Initiative (TARUCCI), Each municipal committeewas to have 20 members, 14 of which are to be electedCouncilors. These bodies were to provide, manage, operate,maintain and improve municipal services, propose and collecttaxes, cess, fees, rates, rents and tolls besides carryingout commercial activities on its property. FATA LocalGovernment Regulation 2012 was prepared after consultationwith stakeholders in FATA Secretariat and shared with FATAparliamentarians and media for comments to institutionalizethese arrangements. The regulation, however, appears to besilent on what the shape of liaison at agency level would beand how financial resources could be created for running theadministrative system to ensure its sustainability once theregulations was in place in areas with a historic andcultural tradition of defying tax liability. While reform ofgovernance in FATA is a work in progress, incorporation ofthe voice and aspiration of the common people of FATA in thefuture system of governance remains weak.

146 Ayaz wazir, “Make Fata a province”, The Daily News, August 28, 2011

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CONCLUSION AND THE FUTUREFor over half a century, we have seen an evolving socio-economic melieu combined with the increasing involvement ofexternal players in FATA. A negative consequence of the useof the military has been the political displacement of thePolitical Agent and the maliks who kept the system working infavor of the pro-Taliban militants who have established aparallel system of administration, justice, and taxation inthe tribal areas.147 By bypassing the authority of thepolitical agent when conducting armed operations in theFATA, the military inadvertently further disempowered itsalready decaying traditional conduit of influence in thetribal areas. The break down of the tribal societal andpower structure and an erosion of the governance system hasbeen reinforced by the presence of the Taliban, whosefighters have executed tribal leaders who disagreed withtheir policy or agenda.In light of the evident incongruities between the system oftribal governance and the professed constitutional values ofthe state, there is significant support within Pakistan forchanging the current system. Civil society advocates haveproposed FCR reforms in order to bring FATA governance intoconformity with international civil and human rightsnorms.148 There is a recognition among civilian and somemilitary leaders that it may be more profitable to moveforward with governance reforms than to attempt areinvigoration of the now-discredited Political Agentsystem. There are also significant political pressuresbehind the current advocacy for reform: the ANP would liketo see the FATA integrated into KP. There is a political andelectoral calculus behind the ANP leadership’s proposal,most notably its belief that the party would improve itsstanding in the KP legislature were the FATA areas to be

147 Khalid Aziz, “Causes of Rebellion in Waziristan”, in Policy Report, Regional Institute of Policy Research and Training, Peshawar (2007), 39.148 See, e.g., International Crisis Group, Appeasing the Militants, 7–9; Masood Rehman, “FSC seeks NWFP govt’s comments on FCR petitions,” Daily Times, January 30, 2008; and Asad Jamal, “A law that must go,” The News, April 6, 2008.

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integrated into the province.149 This integrationist view,however, is not universally shared and some tribal eldersargue that the FATA should be kept separate from KP andtransformed into a new province, or granted a status similarto that of Gilgit-Baltistan.150 The debate has been throwingup a more comprehensive focus on FATA‘s economy and itseconomic development, the security issues, effectiveness andconstitutionality of state governance, the role ofinternational community and building a national consensus onFATA and within FATA.

Policy OptionsMargaret Levi asserts that once a country or region hasstarted down a track, the costs of reversal are very high.151

This is because the benefits from a particular path increaseover time and alternative options seem unattractive. Butthis is only true for a system that is beneficial to thestate and the people, which is not the case with FATA wherethe prevailing system of governance has only benefitted afew selected tribal elites, in a policy that has beensimplistic and convenient. One option for a transformativereform of governance in FATA can be an attempt to transitiondirectly to a settled system. However, historically, abruptgovernance transitions have not always served particularlywell. Governor-General Dalhousie’s ambitious reformsbeginning in the late 1840s, which systematically replacedmediated governance and deference to customary law with ahands-on style of administration arguably contributed, atleast in part, to a governance crisis of some consequence:the 1857 war of independence and the subsequent dissolutionof the Company Raj in favor of direct British rule. Thedramatic annexations and reforms that took place in thedecade prior to the upheaval arguably worked against the149 Syed Iftikhar Hussain, “Inaugural Address,” in Cheema and Nuri, eds.,Tribal Areas of Pakistan, 7.150 “Provincial status for Fata demanded,” Dawn, May 31, 2008.151 Margaret Levi, “A Model, a Method, and a Map: Rational Choice in Comparative and Historical Analysis”, in Comparative Politics: Rationality, Culture,and Structure, ed. Mark I. Lichbach and Alan S. Zuckerman (Cambridge: Cambridge University Press, 1997), 19-41.

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stability of the regime. In the contemporary context,moreover, the Pakistani government has shown a notable lackof enthusiasm for this dynamic and any plan of transition inthe tribal areas that is predicated on confrontation withthe tribal elite.Another option is to follow a reform trajectory thatintroduces reforms incrementally and gradually. Such areform trajectory in FATA would begin by first moving awayfrom the highly mediated nature of governance in theagencies, and only later transitioning toward a proper legalframework. Along this trajectory, the intermediate statewould in some respects conjure up the style of Munro’sgovernance in Madras: a flexible paternalism thatnonetheless attempts to recapture the efficacy of localinstitutions. Within the Pakhtun tribal context, this willsignify gradually abandoning the state’s historical relianceon the maliks and instead preferencing an arrangement inwhich the political agent could begin to engage the socialorder from the bottom up. The key advantage of this trajectory rests in its ability tofacilitate and support local institutions of governance thatmay serve as vehicles for delivery of social services anddevelopment, building a civic culture from the grass-rootlevel up. Some of the problems inherent in this approachflow from the potential unpalatability of retaining anintrusive Political Agent with broad discretion in areas ofgovernance and the opportunity cost of undertaking agradualist approach to the extension of legal norms,particularly in the area of fundamental rights. While thispath may incur a somewhat high initial cost, the PoliticalAgent as an administrator would eventually be in a positionto transition the basis of his decision-making fromdiscretionary judgments to rules grounded in a prevailing,predictable and transparent legal order. Such a transitiontrajectory also involves risks like its propensity tocalcify existing leadership structures, which may not berepresentative or effective; its incompatibility, at leastin the near term, with the expansion of electoral mechanisms

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for leadership selection at the lower tiers of social andpolitical life; and its continued reliance on comparativelyunaccountable institutions.The Recommended TrajectoryGiven the socio-political realities in FATA, a gradualtransition path is recommended to realize governance reformsin FATA. Such a reform trajectory would retain, for a time,mediated forms of governance, while shifting the patterns ofstate-society interaction toward a system that is moreformalized and predictable. In case of FATA, thisintermediate solution will involve incremental reforms tothe FCR that expand the domain of law and reduce thearbitrary powers of the state, but within that domain oflaw, may retain the maliks for a transitory period givingthem a role as the mediators. In such a way, beforeattempting to change the hierarchical patterns of state-society interaction that exist between the state, the triballeadership, and the tribal population at large, the statewould gradually establish a new basis of authority: law.Traditional justice structures remain a vibrant andsignificantly legitimate mechanism for resolving conflict incommunities of FATA that can be strengthened in compliancewith constitutional and human rights standards. Theirlegitimacy and continued utility can be explained by choice,in cases where people select traditional legal institutionof jirga over state institutions for their positiveattributes. On the other hand, it can be explained bynecessity, in localities where limited penetration of stateinstitutions or lack of access to these institutions iscombined with strong or at least stronger local presence ofcustomary institutions. Some other positive attributesassociated with customary justice system include physicalthe use of familiar procedures and language, limited costsand short duration involved in dispute resolution, knowledgeamong the dispute settlers of the local context andPakhtunwali norms, and the more restorative nature of theprocess. There are also less positive aspects that includesocial pressure on disputants not to refer a dispute to a

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state court and disputants’ fear of reprisal or socialostracism should they enter the formal justice system.152 Asignificant issue in the traditional conflict resolution isthat traditional dispute settlement may violate human rightsstandards and the national constitutional provisions anddeprive victims and suspects of minimal standards ofprotection or procedural rules of due process and evidence.Further, traditional justice and Pakhtunwali norms areregarded as patriarchal with leadership positions held bymen and that property ownership vested in men, while womenexercise only derived rights. Jirgas, therefore, areperceived to systematically deny women’s rights to assets oropportunities. Nevertheless, traditional justice is not necessarily aproblem to be overcome. Rather, it is an undeniable andcritical part of the justice landscape in FATA. The argumentin this paper is largely premised on the notion that legalpluralism is a reality and a resource that we need torecognize and work with, in all of its complexity.Traditional dispute present opportunities to envision a homegrown alternative to the standard western template thatincludes restorative elements and matches local conceptionsof justice. The role of traditional mediators at thegrassroots, in fact, provides a valuable resource forimproving access to justice and avoiding court congestions.Engagement with traditional justice systems implies engagingwith living customary law. Such an engagement withtraditional justice in FATA may be undertaken with threebroad principles in mind: expanding state control of thejustice system and enhancing the cultural relevance of theformal system by aligning it with customary systems;improving the quality of informal justice through stateoversight and the insertion of legal or constitutional humanrights standards; and attempting to subjugate traditional,informal processes in a structural hierarchy below thestate. Because of focus on the demand side of justice, a

152 Digby Sqhelo Koyama, Customary Law in a Changing Society. (Cape Town: Juta &Co, 1980).

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priority of the strategy should be to address the socialconflicts through the enhancement of an enabling environmentthat ensures effective access to legal services and adequateprotection of human rights. This engagement can beaccomplished by leveraging the traditional deliberativemechanism of the jirga and by expanding the system of agencycouncils which was created in late 2004 as a partiallyelected forum for promoting local governance, but which, atpresent, is little more than an institutional shell,153 fromthe current one-tiered structure to a three-tiered structureanalogous to the local government in the settled areas. Theuse of Citizen Community Boards (CCBs) under the LGO systemmay provide an instructive analogy in this regard. Sensitiveissues of family law might for the time may be left to qazicourts to be established on model of those in PATA. Specificlegislative measures may assist in regulating andmainstreaming traditional jirgas and their norms as done invarious African countries. Whether appointed or elected, the tribal leaders couldgradually be granted a set of legally defined powers likethat of a justice of peace by which they are charged to keeporder within their respective jurisdictions. The generalprinciple would be to recognize, insofar as it werepossible, existing patterns of tribal leadership, and at thesame time bring the exercise of that leadership under thedomain of law. The FCR can be amended to provide eligibilitycriteria for jirga members determining cases, a timeframe laiddown for the determination and the informal ‘incentivepayments’ provided to jirga members regularized through law.Under such an arrangement, the state will have adequatespace to extend the provision of basic civil rights andother legal mechanisms that could encourage productiveeconomic activity, and to institute a more robust andindependent judicial oversight. As a matter of emphasis thestate will privilege the development of local decision-making bodies that provide it direct contact with the tribalpopulations, and will seek to retain a strong executive153 Shinwari, Understanding FATA, 13, 77. See also International Crisis Group, “Pakistan’s Tribal Areas,” 12.

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presence with limited discretionary powers. This arrangementwill ease aside discredited members of the maliks withoutleaving the system devoid of a locus of authority. At thesame time, instead of the madrasa franchises, formal seculareducation needs to be promoted, while political partiescontinue to enjoy freer and more penetrating access to theregion. By doing so, it will not only expose the masses tonew ideas, it will also limit the influence of religiousparties and encourage political participation.Meanwhile, to strengthen the investigation and prosecutionfunctions, levies may be provided with penal and proceduraltraining enabling them to independently register andinvestigate cases all over FATA and not merely protectedareas and sarkari roads, and trained prosecutors appointedinitially to be substituted later by a professional policeorganization, preferably maintaining tribal and sub-tribalquotas, though in a more formalized and transparent manner.FATA should also have its Army Corps Headquarters stationedin FATA. The problem of FATA is as much quelling the currentinsurgency as preventing a future one. After these new structures takes shape at the grassrootslevel and achieves relative stability, the arbitraryjudicial and fiscal powers of the Political Agent can berecalled in favor of an inclusive and impartial rule of law.The future political status of FATA should ultimately bedetermined by the people of FATA. This can be achievedthrough a referendum, plebiscite or any other meansacceptable to the masses. Possible options could includebecoming a separate or independent province, preferablybecoming a part of Khyber Pukhtunkwa, or something similarto the Gilgit Baltistan-style constitutional structureadopted in 2010.

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List of IntervieweesKhwaja Daud Ahmed, former APA Malakand.

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Capt. (Retired) Munir Azam, FATA Secretariat, former PA Bajaur.Aftab Durrani, FATA Secretariat, former PA Orakzai.Ali Raza Bhutta, former APA Razmak and FR Kohat.Afzal Latif, fromer APA FR Tank.Anwar Ali, Director Intelligence Bureau.Muhammad Adil Khan, former APA Wana and PA Bajaur.Dr. Musarrat Hussain (Kurram Agency), visiting faculty, Pace University,New York.

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