FATA Reforms: A Break from Tradition?

*Some names have been changed.

In a crowded male hostel in Islamabad’s I-9 sector, packed almost exclusively with young students and men from the Federally Administered Tribal Areas (FATA) on Pakistan’s northwestern border, there is far too little excitement about the government’s plan for reforms in the region. The national media and certain sections of the urban intelligentsia have heralded the reforms as a watershed, but many of the men we met at this hostel point out similar initiatives that had achieved little under previous governments.

“After all the government has allowed to happen in the Tribal Areas, it is neither capable nor willing to integrate it into the rest of the country,” says Ali Wazir, 35, an independent politician who has been staying at the hostel while visiting relatives in the city.

When Ali was in college, his father and uncles and other members of his family were gunned down by Taliban militants. Like many tribesmen we have spoken with, he puts their deaths down to state policy rather than the “lawless” and “tribal” nature of Pashtun society, which is a popular explanation in Pakistan. “We have lived peacefully with the same customs in the tribal areas and other parts of the world for many years,” he explains. “It is only when the region began being used as a strategic zone that violence came to our doorstep.”

That use of FATA as a strategic zone began well before Pakistan was founded. For over a century, FATA has been governed under a colonial-era system of indirect rule, embodied by the Frontier Crimes Regulations (FCR) of 1901, first promulgated by the British Raj’s frontier administration. Based on problematic ideas about frontier space and tribal society, the system enabled the Raj to project power beyond its administrative boundaries with minimal investment and effort.

Supposedly created to govern “independent” tribes under local “traditions and customs,” the FCR and the frontier administration fundamentally transformed the realities of tribal existence trapping the region’s governance in an alleged timeless past, exposing its inhabitants to brutal forms of coercion and violence, and insulating them from growth and development in the rest of the country.

Pakistan has retained the FCR in more or less the same form since independence in 1947, which has allowed for the region to be used as a springboard for various strategic interventions in neighboring territories. After a century of living under this system, the tribes are now economically and socially dependent on the very agents of their disenfranchisement: the entrenched and often predatory class of local leaders and maliks, and government personnel that control many aspects of life in FATA. Any effort to reform governance in the Tribal Areas has been hampered by members of this privileged class who have staunchly opposed numerous efforts in order to protect their power and position.

Last year, with talk of major reforms in the air, all of that seemed set to change. After consultations with some locals from the Tribal Areas, a high-level committee published a set of final set of recommendations in August 2016 to reform governance in FATA. In certain important ways, the committee’s recommendations represent a qualitative departure from the past. Equally important, however, is the fact that they also appear to ensure that certain legacies will continue for the foreseeable future. Members of FATA’s entrenched class were able to exert considerable influence over the process. The military also retains a tight grip over much of the region’s administration, in the wake of numerous anti-insurgency operations.

These conditions certify that many aspects of the Raj’s prized system of frontier governance will continue, at least, until the region’s proposed merger with the neighboring Khyber Pakhtunkhwa province 5 years from now. By then, it is entirely likely that FATA’s disaffected classes will have drifted even further away from the state and lost faith in the process of reforms altogether.

A history of the present

Markets, farms and bustling villages hug either side of the road between DI Khan and Tank, both settled districts in the KP province neighboring South Waziristan. But beyond Gomal, the last village of Tank district, busy villages give way to numerous security checkpoints and roadside fortifications established by the government’s security forces. After over a decade of intermittent fighting between militant groups and the government, which has intensified in recent years, locals now live under almost constant surveillance, with drones humming overhead and informers listening in on the ground.

In mainland Pakistan, some blame the Tribal Areas’ people and location for its prolonged instability. According to Governor of Khyber Pakhtunkhwa, Iqbal Zafar Jhagra, who belongs to the ruling the PML-N party, the geo-strategic position of Pakistan and the country’s relations with Afghanistan are also to blame. “The influx of non-state elements from Afghanistan, including those with family and tribal affiliations this side of the border, has complicated the situation further,” he adds.

The story of why FATA is in its present turmoil, in fact, begins in 1849, when the British annexed Punjab and inherited Ranjit Singh’s shaky dominion over the ill-defined Pashtun belt in the west. By this time, the British were already four decades into their disastrous entanglement with the predominantly Pashtun state of Afghanistan and their initially romanticized view of Pashtuns as noble savages had largely been replaced by an image of violence, anarchy, and criminality. Strategic and security concerns – including fears of Russian expansionism, perceived Pashtun complicity, and the raiding of nearby settled districts by some Pashtun tribesmen – also dominated the Raj’s vision for the frontier, rendering it as a bulwark against any perceived threats to India in the British imagination.

The British ended up creating a judicial and administrative system on the frontier that drew heavily on this vision. In addition to considering Pashtuns as too ‘wild’ to submit to colonial rule, the British also thought of them as too mobile to support effective revenue collection by the state given that they had homes and businesses on either side of the (then) unmarked boundary between Afghanistan and the Indian frontier. In the colonialists’ imagination, this made the costly transfer of the colonial bureaucracy into the region pointless.

Instead, the British imposed a system of indirect rule on the frontier, based on the appropriation of local institutions and practices. Individuals were identified and categorized on the basis of tribal affiliations, which ultimately became the main factor determining their treatment by the state. The British drew up schedules of tribes belonging to each agency, recording its relations with them, and even banning certain tribes from state recruitment. They also appropriated the institution of jirga, a traditional council for dispute resolution and consultation between and within tribes, as an alternative to the colonial judiciary. And, they formalized the maliki system, under which local influentials were appointed as tribal leaders, awarded cash allowances and other benefits, and given responsibility for the maintenance of order and community policing. Many of these maliks were also inducted into jirgas, where they often imposed collective punishment on entire tribes or family units for the actions of individuals.

Crucially, this strategy gave legitimacy to British rule on the frontier by creating the illusion of tribal autonomy and cultural preservation. But, in reality, it flattened the tremendous diversity of local politics and society into one timeless, immutable form, and gave the British final say on what constituted local culture. For example, among the frontier Pashtuns, tribal membership and genealogy was recorded orally, allowing for fluidity in social identities. But British documentation of these genealogies made local identities less fluid and the divisions between tribes more pronounced.

These appropriations of local institutions and traditions were eventually formalized in the Frontier Crimes Regulation (FCR). The Regulation was initially passed in 1872 and expanded twice afterwards. Strategies of violence and coercion already in use by the British, including collective punishment, blockades, and banishment of entire tribes or family units, were sharpened and given more detailed expression in each subsequent version of the Regulation. The British version of the jirga system was regularized under the FCR, with later versions adding details on the jirgas’ authority, scope, composition, and punitive powers.

Later versions also authorized frontier administrators and the jirga to order individual exile or execution and directly and preemptively sanction individuals and tribes, demolish homes and markets, demand bonds for obedience and order imprisonment for failure to post the required amount—with punishments being meted out over a wide range of offenses, including failure to meet community policing obligations.

The appointment of maliks under the FCR also had a devastating effect. For centuries before the advent of the British on the frontier, maliks had been selected by the local community, sometimes on the basis of status and influence, but just as often because of bravery, wisdom, or strength. But, the British colonialists began to appoint maliks for their own ends and enforce isolation of the region through blockades and other tactics. This made locals more dependent on state patronage doled out by Raj-appointed maliks—and thus more open to coercion. Thus, in choosing maliks on the basis of status and loyalty to themselves, the British created “a constituency of their own people,” according to Latif Afridi, a lawyer and politician from Khyber Agency, effectively skewing lines of accountability between people and their representatives.

Behram Khan, a tribal elder of North Waziristan, believes this formalization has had an adverse effect on tribal life. “Collective punishment was never as severe as it is now. It was more of a moral obligation that could be negotiated,” he says, based on what he knows from forbears. “But in the hands of the British, it began being used like a blunt weapon.”

Governing it all in each of the 7 agencies is the office of the Political Agent, which, under the Raj, was mostly filled with bureaucrats from the Indian Political Service (IPS), who had traditionally acted as agents of Britain’s indirect rule in the princely states. Many of those selected were related to officers who had already served on the Frontier. The administration, as a result of these practices, remained both continuous in its style of governance and overwhelmingly European in composition till independence in 1947.

The road to reforms

It took Pakistan nearly three decades to first propose changes to the system of frontier governance it inherited. In 1976, a committee was formed for the merger of FATA into the neighboring province of NWFP (now Khyber Pakhtunkhwa) under the then Governor Maj. Gen. Naseerullah Babar. According to the present government’s FATA reforms committee report issued last year, the committee’s proposals were ultimately shelved after the military coup that deposed the Zulfikar Bhutto-led democratic government in 1977.

But, locals have a different version of events. “When Bhutto and Gen. Babar visited Wana [administrative headquarters of South Waziristan agency], the Political Agent and a group of maliks orchestrated an attack in the surrounding area and later used this to argue that the local were against reforms,” says Ali Wazir, whose late grandfather met the committee during its visit. “Initially, my grandfather thought the firing was happening in celebration of somebody’s wedding. So he was shocked when Gen. Babar told him they had witnessed the same thing before, while visiting Khyber Agency.”

Subsequent attempts at changing the status of FATA were more or less similarly ineffectual. The 1996 extension of adult franchise and the 2011 extension of political parties and FCR Amendment Act – which reduced the scope of collective punishment slightly – represent the only major changes to the colonial-era governance system. The region has become more socioeconomically integrated since independence, with many families, workers and students from the region living in other parts of Pakistan. At the same time, residents of FATA face ethnic profiling and harassment by the authorities, and experience extreme difficulties in obtaining and retaining national identity cards, which limits their ability to work and conduct business in Pakistan proper.

Ejaz Mohmand, former president of the FATA Lawyers Forum, believes that suspicion of Pashtuns draws on the belief that they are too close to Afghanistan. “I call Afghanistan my spiritual home, but that does not mean I reject the existence of Pakistan,” he explains.

This racialized suspicion is likely also a factor in the abrupt and repeated border closures and a tougher border regime in FATA that have made it difficult for people to travel and conduct business in Afghanistan, limiting their livelihood options and historic easement rights. As a rule, even travel within the region requires locals to pass through a complicated and exploitative official permit system, known as rahdari. This has effectively increased their dependence on state patronage and jobs.

The region also continues to lie outside the administrative and judicial system in place in Pakistan proper, with Political Agents, maliks, and jirgas enjoying virtually the same powers they did in colonial times. However, the region’s use as a strategic launch-pad has given rise to a new class of elites, including militant groups and jihadi preachers, who have often violently targeted government officials and the traditional political class. Of the 182 laws extended to the region by executive presidential order, 69 deal with security and law and order. A number of special administrative entities, including a planning secretariat, a trade and investment development authority, and a disaster management agency, were established in the late 2000’s, but have had little tangible effect on the region’s development and ongoing humanitarian crisis.

The 2016 FATA reforms committee report, in this context, represents a sea change in Pakistan’s sovereign assertions, narrative-building, and strategic thinking on the frontier. It outlines plans for the withdrawal of the security forces from the area, the extension of the provincial boundary of KP right up to the international border with Afghanistan, and provision of previously unavailable rights and services on par with the rest of Pakistan.

The report also acknowledges Pakistan’s use of FATA as a strategic launch-pad in 1947-48 and the many opportunities for reforming the region that have been wasted since independence. Crucially, it admits that that state policies since independence have had the “same outcomes” as those adopted by the Raj. The report discusses FATA’s socioeconomic isolation, although not in sufficient depth and provides, to date, the most comprehensive picture of public investment shortfall in the region, which is perpetuated by its exclusion from fiscal equalization mechanisms.

At the same time, the report takes stock of all major reform initiatives carried out in the region, including the work of a civil society organization, the Shaheed Bhutto Foundation. This is commendable for a country with, at best, a mediocre record of promoting civic participation in governance. The reforms committee also makes the much-needed distinctions between the concerns and demands of FATA’s historically entrenched class and a newly emergent class of students, professionals and activists, in a bid to balance the perspectives of both groups in its recommendations.

As evident from a recent op-ed written by Sartaj Aziz, foreign advisor and head of the present FATA reforms committee, the government has also given serious thought to the implications, feasibility and implementation of the proposals outlined in the report – including steps to be taken in the 5-year transition period. Such thoughtful deliberation is reflected in the committee’s recommendations, which, among other things, ensure accelerated rehabilitation and reconstruction of areas destroyed by conflict; fiscal equalization, and improved governance of development work; elimination of rahdari (permit) system, and conduct of local bodies elections in 2017. Most groundbreaking among the committee’s recommendations are those in the administrative and legal-judicial spheres, including reduction in the powers of political agents, repeal of collective punishment, rationalization in the role of jirgas, and extension of the superior judiciary’s jurisdiction in the region.

One step forward, two steps back

But this is where the break from the colonial legacy of frontier governance ends. The way in which the reforms committee – which itself lacks any representation from FATA or civil society – conducted the deliberations and consultations with people from the Tribal Areas has raised questions about the representativeness of the entire process.

According to the committee’s report, separate consultations were held in each tribal agency and attached frontier region (FR) with 200 to 300 tribal elders and maliks and an unspecified number of civil society members, including traders, media persons, political party workers and officials, and youth.

I.A. Rehman, director of the Human Rights Commission of Pakistan, notes how this lack of detail on the composition and selection of participants has made it impossible to judge the representativeness of the consultations. By contrast, the report released by the Shaheed Bhutto Foundation (SBF) in 2009, which was also based on consultations with people from FATA over potential reforms, gives a more complete picture of the participants involved and the selection process followed.

News reports of the consultations however have made clear that the FATA reforms committee was often met with protest and demonstrations. At a meeting in Bajaur agency on Dec 31^st 2015, young male students shouted slogans against the FCR and the current administration when Malik Qadir Khan spoke in favor of the law. They met the same fate in Mohmand a day later where political party workers demonstrated. And, in Khyber Agency, massive protests turned out for ton April 04, 2016 when the reforms committee visited.

Many local tribes, still displaced in the aftermath of security operations, were unable to participate meaningfully in the consultations, especially the Mehsuds, Dawar, and Orakzai. According to Akhundzada Chittan, a politician from Bajaur, most of the consultations were dominated by “members of the patronage-extracting classes.”

Haji Gul*, a resident of South Waziristan, says that only two local participants were given the opportunity to speak at the session he attended, one “for merger” and one “against,” which, he feels severely limited the scope of discussion. “After completing their speeches, the committee told us there wasn’t much time left because they had to fly back early in their helicopter due to poor weather,” he explains.

Akbar Khan*, a journalist from South Waziristan, believes that such tactics were deliberately employed by the government to filter local voices, especially after locals began demonstrating at one of the first few consultations, held in Khyber Agency. “Local journalists, including myself, were barred from taking our cameras and other equipment into the session, without any explanation,” he says, adding that he and his colleagues tried protesting but to no avail.

Samina Afridi, a university professor from Khyber Agency, believes adequate steps were not taken to include women in the consultative process. “If there were cultural sensitivities involved in making women sit with men, the committee could have held separate consultation sessions for women,” she says. “Some of FATA’s women have homes in both settled districts and the tribal areas, and could have been involved in the process more easily.”

According to Senator Farhatullah Babar, the current consultations were “severely limited” in comparison to the consultations on FATA reforms led by the Shaheed Bhutto Foundation in which he was closely involved.

It is perhaps unsurprising, then, that aspects of old forms of frontier governance still find expression in the current government’s reforms package for the region. Aspects of the maliki system remain unchallenged, while the frontier administration under the office of the political agent has been identified as central to the implementation of reforms, despite a minor reduction it its powers.

The committee plans to repeal the FCR and replace it with a new law. The law has variously been called Nizam-e-Adl or the Rewaj Act, with the latter name indicating that rewaj or custom will continue to provide the scaffolding for the new law. Although no final version of the law has been released, some details are known. For instance, the jirga system will be retained under the supervision of a judge, and it will decide cases using a mixture of tribal custom, along with provincial and federal laws. This is justified on the basis of fears that any wholesale repeal of the jirga system would be resisted by locals and thus destabilize the social order.

But, Senator Babar feels such justifications have been used to delay reforms in the region for far too long. “When adult franchise was extended to the region for the first time in 1997, the people of FATA including women participated enthusiastically,” he explains. “But before this, it was presumed for a long time that the people of FATA did not want elections, as it went against their customs and traditions.” Justifications of this kind only reinforce colonial notions about Pashtun violence and the immutability of tribal culture, and ensure that the power to decide what this constitutes remains firmly with the state through the jirga and newly-extended courts system.  The report, however, does not see this as a problem, claiming that jirgas will function like juries elsewhere and fundamental rights will be ensured by judges under this system.

Barrister Zafarullah, special assistant to the Prime Minister, has been involved in drafting the Rewaj Act and believes codification of tribal law and custom may become an important component of this hybrid system, once in place. The reforms committee report also emphasizes the formalization and codification of tribal law and custom as a means of ensuring its proposed judicial system’s compatibility with fundamental rights. This is too optimistic a view about a process that was used by the Raj to legitimize its hold over the frontier. The result of formalization and codification of tribal culture by the British was the creation of new ‘timeless’ version of tribal culture, riddled with problematic colonial assumptions about Pashtuns. It was a system that was resistant to change and ultimately defined by the British. The Pakistani government must thus be careful about how it ultimately codifies tribal law and custom.

Yet, according to Habib-ur-Rehman Sheikh, a legal consultant working on the draft of the Rewaj Act, the government has so far not sought the input of locals or civil society within this process. “The current draft of the Rewaj Act is still confidential because it has not been finalized yet,” he explains. And, instead of locals, he says a wing in the Interior Ministry dedicated to FATA has provided most of the input on the nature of tribal law and custom, alongside certain politicians.

Samina Afridi is concerned this process has overlooked many people. “How will the government ensure rewaj is not used to oppress women, as has been done for decades,” she asks pointedly.

Barrister Zafarullah, for his part, urges that the government should be trusted to separate the “positive parts” of the Raj’s old legal system from its more regressive elements. “I don’t want to get into details, but the system will be brought in line with modern times through a number of changes, including extension of regular courts system to FATA,” he says. The claim inspires skepticism given the abysmal state of human rights is abysmal in the country despite the presence of courts and the fact that military tribunals and secret trials are quickly becoming common.

But, perhaps the biggest failure of the reforms committee lies in its inability to consider FATA outside the confines of national security. Two of the committee’s members are former generals, including the country’s national security advisor. The committee’s recommendations on reforms start off by framing the region as a security concern for Pakistan and the world. Many of the government’s past omissions, including failure to implement the local government system on two separate occasions, are put down to unspecified “security concerns” in the report.

And, while it enthusiastically announces repeal of the FCR, the report is tellingly silent about the future of the Action in Aid of Civil Power Regulation, which was specifically passed in 2011 to involve the military in administration, policing and prosecution on the frontier. The act gives military officers unbridled powers in indefinitely detaining individuals suspected of crime without any material evidence. Any confession recorded by authorities during detainment is also considered admissible and sufficient to prove the facts of the case under the law. Additionally, while torture is prohibited by the law, the oversight boards meant to investigate abuse by authorities are largely non-functional, making it almost impossible to protect detainee rights. The act also retroactively covers any actions of the military undertaken on frontier since 1^st February 2008 thus granting legal cover to any illegal detentions and prosecutions of the past.

The state’s empowerment of village “peace” committees is also not discussed in the report. Under this strategy, influential locals were given resources by the state to raise tribal militias, or lashkars, to maintain law and order in a specific area. When this strategy was first being implemented, it was considered necessary to guard against the resurgence of militant groups. But reports suggest many of these committees have abused their authority, effectively acting as tribal warlords within their given jurisdictions.

Ramzan Barki*, a resident of South Waziristan, alleges that many former jihadists of the Afghan wars have been inducted into these committees to ensure their loyalty to the government. The government is itself hesitant to discuss the issue in public.

At a recent Senate standing committee hearing, an official of FATA’s planning secretariat reportedly only revealed the total amount of money spent on the establishment of peace committees since 2013, arguing that the complete record was too sensitive to be displayed publicly. The Governor of KP, a member of the FATA reforms committee, was also hesitant to provide any details on the matter when we asked him. Yet, official silence is unlikely to dispel questions on the status of the peace committees in a reformed FATA, with the government having spent upwards of Rs. 650 million on their establishment over the last few years.

Senator Babar believes that the state’s continued focus on FATA as a strategic zone has been at the expense of the region’s people. “If we want peace in the tribal areas, we have to give strategic importance to the people and empower them,” he says.

Yet, after seeing how the reforms process was undertaken, members of FATA’s emergent class of students, activists, and professionals fear they will be unable to influence their region’s future direction.

“There is no longer hope for any fundamental change,” laments Samina Afridi. “The powers-that-be have shown they are not ready for this.”

The reforms committee report acknowledges that groups of people like Samina are the driving force behind calls for the integration of FATA into the rest of the country. But, for them to continue supporting reform efforts, the interests of these groups must be balanced evenly against the interests of other, less progressive forces. So far, this balance seems to be tipping in the wrong direction.

The celebratory air surrounding the FATA reforms package seems to have faded since their announcement in August last year. Consensus among political parties on the issue is also starting to fray, with a faction of politicians led by Maulana Fazlur Rehman calling for the future of FATA to be decided by referendum. In part, such demands stem from the questionable representativeness of the reforms process, which has largely been hijacked by government officials and members of FATA’s privileged class.

And, while the reforms represent a break from the past in some important ways, the thrust of the government’s proposals has been towards retaining the status quo. In part, this is because of fears that wholesale change is not acceptable to FATA’s people.

But, Samina Afridi feels otherwise. “Many people from FATA, especially displaced families, been living under the system in Pakistan’s settled areas for many years,” she says. “I don’t understand how extension of the same system to their homeland will cause chaos. Can the region even go through any greater chaos than it already has?” she asks incredulously,

Back at the hostel in Islamabad’s I-9 sector, the young men from FATA we met would like nothing better than to forget the chaos of the past. Farooq Khan*, a student from North Waziristan agency, says his people would like nothing more than to look towards the future and forget what has been done to their homeland.

But, he asks: “How can we forget what has happened if they continue to remind us that we are nothing more than savage tribals?” 

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Shah Shuja is a writer.

D. Wazir is an independent researcher