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7/31/2019 Pakistan's Tribal Areas Today
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Tribal Areas Today: Legal black-hole
and Talibanisation in the Tribal
Areas of Pakistan.
Kamran Arif
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THE TRIBAL AREAS OF PAKISTAN
Population: 3.17 Million
which about 2% of the total population of
Pakistan.
Area: 27,224 Sq Km,
which is roughly 3% of the Pakistans total
area.
1998 Census
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THE TRIBAL AREAS OF PAKISTAN:
The Tribal Areas consists of Seven Agencies,
which are administered by a Political Agent.
Four Frontier Regions sma poc ets o Tri aAreas) administered under the FCR from the
Settled Districts.
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TRIBAL AREAS OF PAKISTAN:
Bajaur Agency: Population of around 595,000. MainT Tribes: Tarkani and Utmankhel
Khyber Agency: Population around 547,000. Main TribesAfridi and Shinwari.
Kurram Agency: Population of around 450,000. MainTribes: Turi and Bangash.
Mohmand Agency: Population of around 334,000. MainTribe: Mohmand.
Orakzai Agency: Population of around 225,000. MainTribe: Orakzai.
South Waziristan: Population of around 430,000. Main
Tribes: Wazir and Mehsud.North Waziristan: Population of around 361,000. Main
Tribes: Wazir and Dawar.
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THE TRIBAL AREAS OF PAKISTAN
All but one of the Tribal Agencies share border
with Afghanistan (The Durrand-Line). 600 Km of the 2500 Km Long Durrani Line lies in
the Tribal Areas.
All tribes are ethnically Pukhtoon (or Afghan),Muslim (predominantly Sunni) by religion, speakPushtu language, attributes that they share with
their Pukhtoon brothers in Afghanistan, North-West Frontier and the Baluchistan Provinces ofPakistan.
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THE TRIBAL AREAS
Tribal Areas are usually areas with largely or exclusively
Tribal population, Which are characterised by itsisolation, distinct culture, primitive traits and theeconomic backwardness. (Lokur Committee Report,1965)
Tribalism is the belief in fidelity of ones own kind,defined by ethnicity, language culture, language andreligion. (John Naisbitt: The Global Paradox)
Tribal Areas or People are usually excluded from the
normal political, administrative and judicial structuresof the country.
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THE TRIBAL AREAS OF PAKISTAN
The Issues
Do the people of the Tribal Areas of Pakistan
have a unique culture, language, religion oreven history?
Are the exclusions of the eo le of Tribal
Areas from the mainstream administrative,political and judicial systems of the countryonly because of the law.
Strategic Significance.
Vulnerabilities.
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History
Over the millenniums South Asia has seen many
foreign invaders, including the Aryans andPersians, Greeks (Macedonians), Mongols, Arabs,
Af hans, the British.
Most of the invaders came to South Asia through
the passes in the present day Tribal Areas.
Kabul has been a popular staging post for many
South Asian adventures and has been eyed with
suspicion each India ruler.
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History
The Mughals who ruled both Delhi and Kabul
(16th to 18th century), never totally subduedthe Pukhtoon tribes.
communication routes to Kabul open.
1747 Ahmed Khan, established the Kingdom
of Afghanistan, called himself the Durr-e-Durran, Pearl of Pearls. The Durrani Dynasty.
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The Tribes
The Hill Tribes (around the present day Tribal
Areas) were too unruly and never got into theImperial Mughal fold.
The Mughal like all previous Kings were
concerned more with collecting revenue and leftother matters to the tribes.
Emperor Babur (early 16th century) in his
memoirs mentions sending a force to theBangash Tribe who had refused to pay taxes. Tothis day they do not pay any taxes.
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Customs and Traditions Tribal people, governed by Customary Law.
Riwaj (custom) and Nurkh (precedent).
The highly romanticized Code of Honour. Customof Melmastiya, Nanawati and Badal.
a n ec s on ma ng an a u cat on o y: eJirga.
Jirga means a circle in Mongol and probablysignifies equality of its members.
Members of Jirgas are usually the influential andgenerally women were excluded.
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History
The British arrived in the region in the 19th
century. Coming from the Punjab (dislodgingthe Sikh rule) by a mixture of conquest,
.
Adventures into Afghanistan.
Two expanding empires; Czarist Russia and
the British Empire. The Great Game? Afghanistan a Buffer State?
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History
Durrand-Line drawn in 1893. Separating Colonial
India and the Afghanistan. In 1901 North West Frontier Province was created
(4 districts separated from the Punjab) the
remaining area between these districts and theDurrand line became the Tribal Areas.
Treaties with the local tribes, to keep the peace
and the communication routes and means. Frontier Crimes Regulation, 1901 (earlier FCR
1848, 1873 and 1876)
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THE FRONTIER CRIMES
REGULATION Concentrates all police, executive and judicial
functions in the Deputy Commissioner (thePolitical Agent).
Principle of collective responsibility and collective.
Adjudication through a Jirga. Members localMaliks, appointed by the Political Agent.
Council of Elders (Jirga) decide on points of fact
both in civil as well as criminal cases. Decisions of Jirga not binding on the political
Agent.
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Jirgas decided cases under the riwaj
(customary law which is generally regressiveand unusually harsh to women).
THE FRONTIER CRIMES
REGULATION
, - .
Security for Good Behaviour (sec 40, 42)
No Judicial Review.
Codification of Customary law. The evolving
customary law frozen in time.
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THE FRONTIER CRIMES
REGULATION
Trials: no evidence is recorded. No trained police
force, no investigation, no scientific evidence.
As Maliks loyal to the Government, Jirgas open to
Jirgas good only as a device to reach settlements.
Admit here-say evidence.
Writ of the Government: Protected,Administered, and Inaccessible.
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THE FRONTIER CRIMES
REGULATION Can regular laws be extended without
development. The districts of NWFP were developed? Trained
police force (detection and investigation), courts
and prison system. Lawyers? Regular Laws: Financial Commitment.
The Minto-Morley Reforms. First World War.
Change of British Policy? Government of India Act, 1935: Excluded Areas.
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Pakistan Creation of Pakistan.
The Indian Independence Act abrogated theagreements with the Tribes.
Tribal Maliks signed instruments of accession toPakistan.
Independence: did not make any difference for thepeople of the Tribal Areas.
The Constitutions of Pakistan 1958 and 1962 retainedthe Excluded Area device.
Guarantee of Fundamental Rights: Judicial Challengescould be raised.
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Pakistan
Declared unconstitutional more then once.
.principles of administration of Justice
Justice AR Cornelius, Federal Court
Doctrine of Eclipse.
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FATA Constitution of 1973: Tribal Areas, (called the Federally
Administered tribal Areas).
Governed by the President through the Governor of theNWFP.
General laws of the country. President extends laws
Legislators from FATA legislated for rest of the country butnot FATA.
No Jurisdiction of the Superior Courts not grantedjurisdiction.
Residents of FATA have Fundamental Rights guaranteed bythe Constitution but no forum to enforce them.
No political activity, allowed. Elections. Adult Franchise.
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FATA
Government Policy in FATA.
Glorified the FCR and the tribal. Rule of Law: Financial Commitment
.
No legitimate economic activity. Trade andindustry.
No Revenue system. Business? Bank Loans? Defective Criminal Justice System
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FATA
Haven for Mafias: Guns, Narcotics, timber.
Smuggling electronic goods etc. Grazing grounds for bureaucrats.
Afghanistan, The undeveloped, inaccessibleFATA finally served its purpose.
Seven million Automatic Rifles and grenades,
rocket launchers and even light artillery piecesin FATA and NWFP.
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Afghan Civil War The fighting between the various Mujahideen
factions at the end of the war. The Afghan Civil War.
Emer ence of a roup callin themselves the
Taliban. Taliban literally means a religious students in
Pushtu. (singular Talib).
Claim they are religious Students and want tobring Afghanistan under Islamic Rule.
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Taliban Taliban at the time were seen as fighting force
with decentralized ad faceless leadership, Took over Kabul in September 1996.
Reco nized onl b Pakistan, Saudi Arabia and
UAE. Almost all are ethnically Puhktoons (as against
Tajiks and Hazaras).
Enforce Islamic Law: which provides both the
justification and the legitimacy of there rule.
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Taliban
For Taliban and other Militants FATA was a gift
from heaven.
Spread into the Tribal Areas and some settled
.
Killing of a handful of local Maliks was all it
took to take control of Waziristan.
Pakistan is now paying dearly its policies inFATA.
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Conclusions
The people of the Tribal Areas have been forced toremain in tribalism through exclusions created by law.
The system that has been imposed on the people of FATAnot much better terror regime of the Taliban.
Peace can only be achieved (and Talibanisation arrested)by establishing the Rule of Law which requires not onlyhuge financial commitment will but also strong political.
A logical first step would be to extend the jurisdiction of
the superior court has to extended to the tribal to FATA. Steps need to be taken to a create a legitimate Economy
in the FATA.