The Struggle for Rights and Reforms in Pakistan’s Tribal Areas As Printed in the November 2014 Report: FATA Faces FATA Voices Shackled for more than one hundred years under an outdated British law, the Federally Administered Tribal Areas (FATA) of Pakistan has been plagued by instability extending well beyond its colonial-era border with Afghanistan. Excluded from essential provisions of the Constitution of the Islamic Republic of Pakistan, the tribal areas are administered through a legal and administrative regulation known as the Frontier Crimes Regulation (FCR), originally imposed in 1901. No act of the Parliament of Pakistan applies to FATA unless extended by special orders from the President of Pakistan. Furthermore and despite the continuous struggle of the people there, FATA enjoys no elected representation at local or provincial levels, and until 1996 tribal citizens had no universal voting rights in elections for the National Assembly of Pakistan. The FCR was originally enacted by British authorities in an attempt to control Pashtun tribes on the northwest frontier of British India. The provisions of the regulation provided sweeping and arbitrary powers to political agents – administrative head of the each agency and agent of the President of Pakistan – to arrest members of a whole tribe, demolish their homes, blockade them, close their businesses and confiscate their property to enforce compliance with government interests. While the FCR was abolished in Pakistan’s Northwest Frontier Province (NWFP, now Khyber Pakhtunkhwa) in 1956, it remains in force in FATA still today. For the last three decades, the people of FATA have seen their land and associations exploited for strategic gain. First during the Afghan jihad and later during Taliban and post-Taliban periods in Afghanistan, the people of FATA have been an unwilling host to government forces as well as militants from around the world. This occupation has severely limited the sovereignty and equality of tribal citizens, enabled a prosperous and corrupt war economy in FATA, empowered militants and decreased space for democratic voices. In efforts to combat the governance vacuum and democratic deficit facing tribal citizens, mainstream political parties in Pakistan have united to demand that the people of FATA be provided the same constitutional rights enjoyed by other Pakistani citizens. In 2010, mainstream political parties formed the Political Parties Joint Committee on FATA Reforms (known as the FATA Committee) to demonstrate a shared commitment to progress and prosperity in FATA, promote debate and call for the implementation of reforms in the tribal areas. For years, the FATA Committee and other stakeholders have worked to build consensus and pressure government. Following government pressure by this multi-party advocacy effort, President Asif Ali Zardari enacted a FATA reforms package in August 2011, including removing the ban on political party participation in tribal elections, making significant amendments to the FCR and increasing development activities in FATA. Although implementation of some 2011 reforms
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The Struggle for Rights and Reforms in Pakistan’s Tribal Areas
As Printed in the November 2014 Report:
FATA Faces FATA Voices
Shackled for more than one hundred years under an outdated British law, the Federally
Administered Tribal Areas (FATA) of Pakistan has been plagued by instability extending well
beyond its colonial-era border with Afghanistan. Excluded from essential provisions of the
Constitution of the Islamic Republic of Pakistan, the tribal areas are administered through a
legal and administrative regulation known as the Frontier Crimes Regulation (FCR), originally
imposed in 1901. No act of the Parliament of Pakistan applies to FATA unless extended by
special orders from the President of Pakistan. Furthermore and despite the continuous struggle
of the people there, FATA enjoys no elected representation at local or provincial levels, and
until 1996 tribal citizens had no universal voting rights in elections for the National Assembly
of Pakistan.
The FCR was originally enacted by British authorities in an attempt to control Pashtun tribes
on the northwest frontier of British India. The provisions of the regulation provided sweeping
and arbitrary powers to political agents – administrative head of the each agency and agent of
the President of Pakistan – to arrest members of a whole tribe, demolish their homes, blockade
them, close their businesses and confiscate their property to enforce compliance with
government interests. While the FCR was abolished in Pakistan’s Northwest Frontier Province
(NWFP, now Khyber Pakhtunkhwa) in 1956, it remains in force in FATA still today.
For the last three decades, the people of FATA have seen their land and associations exploited
for strategic gain. First during the Afghan jihad and later during Taliban and post-Taliban
periods in Afghanistan, the people of FATA have been an unwilling host to government forces
as well as militants from around the world. This occupation has severely limited the sovereignty
and equality of tribal citizens, enabled a prosperous and corrupt war economy in FATA,
empowered militants and decreased space for democratic voices.
In efforts to combat the governance vacuum and democratic deficit facing
tribal citizens, mainstream political parties in Pakistan have united to
demand that the people of FATA be provided the same constitutional rights
enjoyed by other Pakistani citizens.
In 2010, mainstream political parties formed the Political Parties Joint Committee on FATA
Reforms (known as the FATA Committee) to demonstrate a shared commitment to progress
and prosperity in FATA, promote debate and call for the implementation of reforms in the tribal
areas. For years, the FATA Committee and other stakeholders have worked to build consensus
and pressure government.
Following government pressure by this multi-party advocacy effort, President Asif Ali Zardari
enacted a FATA reforms package in August 2011, including removing the ban on political
party participation in tribal elections, making significant amendments to the FCR and
increasing development activities in FATA. Although implementation of some 2011 reforms
The Struggle for Rights and Reforms in Pakistan’s Tribal Areas 2
has been inconsistent, the changes have helped to create an enabling environment for
democratic actors in FATA. In 2014, the ten political parties on the FATA Committee along
with other tribal political leaders and civil society activists continue to push for further reforms
for FATA, including peace and development, the introduction of a local government system,
separation of judicial and executive powers, extension of the superior judiciary’s jurisdiction,
and a constitutional amendment to guarantee fundamental rights and authentic legislative
representation for FATA citizens.
As is demonstrated throughout this report, government institutions, political parties and civil
society in Pakistan indicate widespread consensus on the need for new and more
comprehensive reforms for FATA. In recent months for example, President of Pakistan
Mamnoon Hussain said that government is committed to reforms to help the people of FATA1
and that all possible measures would be taken to bring FATA into the mainstream2. Regardless,
and given the powerful actors involved in making decisions regarding the strategically
significant tribal areas, popular support and strong political will is needed to implement the
longstanding reform demands of both people in FATA as well as patriotic Pakistanis across the
country.
The Birth of FATA
The Federally Administered Tribal Areas (FATA) of Pakistan owes its existence to the struggle
between the British and Russian empires for supremacy in Central Asia. To protect India from
Russian influence in Central Asia, the British considered Afghanistan as a trump card in the
geopolitical battle commonly referred to as the “Great Game”.3 British policymakers were
divided on how to bring Afghanistan under their sphere of influence. War hawks advocated a
“forward policy” strategy while others argued for the creation of a buffer zone to combat the
Russian advance into South Asia.
FATA is today comprised of thirteen administrative districts, including
seven primary “agencies” and six “frontier regions”. From north to south,
the agencies are Bajaur, Mohmand, Khyber, Orakzai, Kurram, North
Waziristan and South Waziristan. The frontier regions (FRs) are FR Bannu,
FR Dera Ismail Khan, FR Kohat, FR Lakki Marwat, FR Peshawar and FR
Tank.
Despite Major General Sir Henry Creswicke Rawlinson’s arguments in favour of physical
occupation of Afghanistan’s power-center in Kandahar, the “forward policy” was rejected in
favour of the less ambitious strategy of a closed-door policy towards Afghanistan. The strategy
stipulated that – in return for subsidies – Afghanistan would become a buffer to curtail Russian
influence. Subsequently, the Pakistan-Afghanistan border agreement of 1893, known as the
Durand Line Agreement,4 between British India and the Afghan Amir (ruler) instigated a tribal
uprising in 1897 during which tribes from Malakand to Waziristan attacked British forces.
In 1901, due to strong Pashtun resistance to British subjugation, authorities separated Pashtun-
populated areas from Punjab Province on the other side of the Indus River. As a result, an
The Struggle for Rights and Reforms in Pakistan’s Tribal Areas 3
additional buffer area was created in 1901 and named the Northwest Frontier Province (NWFP,
later renamed Khyber Pakhtunkhwa), including the “settled areas” inside today’s provincial
borders as well as the adjacent tribal areas of FATA.
The creation of NWFP and the adjoining tribal areas was designed to rein
in and control Pashtun tribes.
To achieve this objective, the British devised a “carrot and stick” policy by providing financial
rewards to friendly tribal chiefs (maliks) and punishing non-cooperative behaviour through
strict application of a new legal and administrative regime known as the Frontier Crimes
Regulation (FCR).
Pashtun Reform Movements
Application of the FCR to NWFP and the tribal areas gave birth to a new class of Pashtun
reformers. This new face of Pashtun resistance was informed by contributions made by
missionary schools in Peshawar, exposure to modern influences in the British Indian Army,
and an educational reform movement known as Tehrik-e-Dar-ul-Uloom-e-Islamia (the Islamia
College Movement) in 1913. The latter was also inspired by the Aligarh education movement
of Muslim scholar Sir Syed Ahmad Khan, who stressed reform through the acquisition of
modern education by Muslims from India.
Another Pashtun reform movement was spearheaded in 1916 by Abdul Ghaffar Khan, better
known as Baacha Khan, and to the Indians as the “Frontier Gandhi”. The Baacha Khan social
reform movement gradually transformed into a political movement known as the Khudai
Khidmatgar Movement (Servants of God Movement) and later aligned with the All India
National Congress in 1930.
Pashtun reformers opposed the FCR and other British policies restricting
their political rights.5
Although those aligned with the Khudai Khidmatgar Movement were able to form a
government in NWFP following 1937 and 1946 elections, their inclination towards the Indian
National Congress and opposition to the partition of India put them on the wrong side of history
when the All India Muslim League spearheaded the creation of Pakistan. According to one
account, Baacha Khan had agreed to the accession of NWFP to Pakistan on the condition
(among others) that the tribal areas be officially merged with NWFP (now Khyber
Pakhtunkhwa Province).6
Following the departure of the British and the creation of the new Islamic Republic of Pakistan
in 1947, the FCR was repealed in NWFP in 1956 and in Malakand Agency in 1975. Quaid-e-
Azam Mohammad Ali Jinnah had agreed to Baacha Khan’s proposal of integrating FATA with
NWFP, but Jinnah asked that the tribes be convinced before such a merger.7
The Struggle for Rights and Reforms in Pakistan’s Tribal Areas 4
Militants and Foreign Intervention
After the creation of FATA and following the Soviet intervention in Afghanistan in 1979,
Pakistan’s strategic considerations in FATA were supported by black market and drug
traffickers, some civil servants, and a minority of tribesmen with stakes in maintaining the
status quo. As these forces stifled voices for reform in FATA, the Soviet intervention set the
stage for another period of proxy wars in the region. Initial local resistance to the Soviet
presence transformed the region into a theatre of war impacting Pashtun society as well as
global developments.
The Afghan resistance attracted jihadis (holy warriors) from around the world and FATA was
used for sanctuary and transit of weapons and fighters to infiltrate Afghanistan and attack
Soviet and Afghan troops. The attacks of September 11, 2001 and the subsequent intervention
to topple the Taliban in Afghanistan further aggravated the situation and transformed FATA
into an international flashpoint. FATA basic foundation of tribal society was transformed as
militant groups took advantage of the vacuum by targeting traditional tribal maliks, political
leaders and progressive democratic actors in the tribal areas.
The Frontier Crimes Regulation
First implemented in 1901, the FCR is an instrument of control, which violates modern
principles and systems of justice. On suspicion of non-conformist behaviour, a political agent
(senior civil servant) may imprison tribesmen for as long as he wishes (prior to 2011
amendments). In addition, political agents have the power to imprison most members of a
whole tribe for the offence of one of its members, order houses demolished or burned,
confiscate their property, close their businesses and order blockades against hostile tribes. Prior
to 2011 amendments, the FCR did not distinguish between male, female and child offenders
and still does not provide any right to counsel to the accused.
Among other changes, 2011 amendments to the Frontier Crimes
Regulation (FCR) prohibit authorities from arresting women and children
and provide small gains in terms of the right to appeal judicial decisions of
administration officials.
In opposition to international governance standards regarding the separation of powers, the
federal government maintains legislative, executive and judicial control over FATA, denying
both the Pakistani judicial system and the Parliament of Pakistan any jurisdiction in the tribal
areas. At the local level, political agents are empowered by the FCR to exercise the combined
powers of police, prosecution, judge and election administrator all in one office.
FATA Administrative Reform
Administratively, a special FATA cell in the NWFP Planning and Development Department
was historically responsible for administrative decisions and development projects in FATA.
In 2002, however, a new FATA Secretariat was created and upgraded in 2006 as the FATA
Civil Secretariat, headed by an Additional Chief Secretary, other secretaries and directors.8 The
The Struggle for Rights and Reforms in Pakistan’s Tribal Areas 5
FATA Secretariat is a central administrative entity that manages the relationship between the
President of Pakistan, the Khyber Pakhtunkhwa governor and the government officials
responsible for implementation of administrative and judicial functions of the Frontier Crimes
Regulation (FCR) at the local level in the tribal areas. While providing benefits in terms of
streamlining administrative functions, the creation of the FATA Secretariat also contributed to
the centralization of power held by the federal government.
The Right to Vote in FATA
The struggle for full voting rights in FATA was spearheaded by democratic elements from
within the tribal areas working together in a coalition called Tehrek-e-Itihad-e-Qabael
(Movement of the Coalition of Tribes).
Their struggle came to fruition when the government of Pakistan responded
to their longstanding demand in 1996, providing voting rights to all adult
citizens of Pakistan residing in FATA, thereby facilitating their
participation in 1997 general elections.
Before 1996, an electoral college of tribal chiefs loyal to the government voted for elected
FATA representatives in the National Assembly of Pakistan.9 Selected by local agents of the
President of Pakistan, members of the electoral college were provided regular government
allowances called lungi. According to one estimate, there were approximately 40,000 lungi-
holders in FATA representing millions of voters prior to the introduction of adult franchise.
Jinnah reportedly wanted legal and political reform in FATA, hoping that tribesmen would opt
for alternatives in Pakistan that did not include dependence on the custom of British or
government allowances as a source of income.10
FATA Citizens for FATA Reform
Individuals and groups in the tribal areas, Pakistani civil society groups and international
organizations have also pressed for legal and political reforms for FATA. While focusing on
particular reform areas relevant to their organizational missions, most groups have agreed on
the basic principles and reasons for reform and also call for people in FATA to be guaranteed
equal rights with other Pakistani citizens.
The FATA Lawyer’s Forum, for example, has made repeated calls for amendment of Article
247 of the constitution to extent High Court and Supreme Court jurisdiction to FATA and
guarantee fundamental rights and rule of law in the tribal areas.11 Likewise, the FATA Youth
Forum has pushed for increased educational and employment opportunities for tribal students
and young people while also demanding that their voices be included in government initiatives
for FATA. In addition, the Tribal Union of Journalists (TUJ) and other local groups have made
increasingly vocal recommendations for enhanced democratization in FATA.
In an effort to amplify the voices of FATA citizens, the Shaheed Bhutto Foundation (SBF) held
The Struggle for Rights and Reforms in Pakistan’s Tribal Areas 6
a series of consultative workshops in 2008 with a wide-range of stakeholders in the tribal areas
and facilitated a process to develop specific consensus recommendations for “defining,
democratizing and developing” FATA. As a result of those workshops, a Mainstreaming FATA
report was published, including recommended reforms for—among others—peace and
development, the Jirga system, the role of political agents, and repeal or significant amendment
of the Frontier Crimes Regulation to bring it at par with the constitution and human rights
standards.12 Subsequently, in February 2009, President Asif Ali Zardari announced reforms for
FATA in line with SBF recommendations. The president did not, however, notify or enact the
changes until 2011 after additional pressure from political parties and others (see below).
Following enactment of a 2011 reforms package, SBF continued to work with FATA citizens
at the grassroots level to arrive at consensus demands for further reforms. Including a diverse
group of citizens, the Pakistani civil society organization established reform councils in all
tribal agencies and frontier regions as well as with women and FATA students at universities
in Khyber Pakhtunkhwa. After a series of individual reform council meetings, 300 tribal
citizens came together in June 2013 as the FATA Grand Assembly to debate and ultimately
approve the Citizens’ Declaration for FATA Reforms, or FATA Declaration.
According to media reports, the FATA Declaration asserts that “all
tribesmen must be guaranteed the same fundamental rights enjoyed by
other citizens of the country and guaranteed by the constitution”.13
Following the FATA Grand Assembly and the announcement of the FATA Declaration, the
FATA Lawyer’s Forum (FLF) also began a push of their own for judicial reform in the tribal
areas. Uniting the voices of all tribal lawyers, FLF held a conference on rule of law in FATA
with Peshawar High Court Chief Justice Dost Muhammad Khan and drafted a resolution to be
passed by the National Assembly outlining substantial legal reforms for FATA. The lawyers
presented their reform demands to the President of Pakistan, the Supreme Court, FATA
members of the Senate and National Assembly, and the Khyber Pakhtunkhwa Provincial
Assembly, and subsequently received vocal support from the Supreme Court Bar Association
of Pakistan and political leaders throughout the tribal areas. The agenda advocated by the
FATA lawyers includes:
Human rights and fundamental rights of FATA citizens should be guaranteed;
Removal of clauses three and seven of Article 247 of the constitution to extend the
jurisdiction of the Supreme Court and High Court to FATA, and transfer legislative
power from the President of Pakistan to the parliament;
Separation of executive and judicial powers in FATA; and
Judges sitting on the FATA Tribunal should be from the judiciary and not retired
bureaucrats.
The Struggle for Rights and Reforms in Pakistan’s Tribal Areas 7
FATA REFORM HISTORY
Timeline of Political and Legal Reform for Pakistan’s Tribal Areas
1848: Annexation of FATA with British India
1893: Durand Line Agreement signed
1897: Tribes on Pakistan-Afghanistan border attack British forces
1901: Frontier Crimes Regulation (FCR) enacted
1913: Tehrik-e-Dar-ul-Uloom-e-Islamia (Islamia College Movement) began
1916: Khudai Khidmatgar Movement (Servants of God Movement) began
1947: Islamic Republic of Pakistan established
1956: First Constitution of the Islamic Republic of Pakistan
1956: FCR abolished in Northwest Frontier Province (NWFP, remained in force in FATA)
1962: New Constitution of the Islamic Republic of Pakistan
1973: New Constitution of the Islamic Republic of Pakistan
1975: FCR abolished in Malakand Agency and Balochistan (remained in force in FATA)
1996: Adult franchise granted to FATA
1999: General Pervez Musharraf creates National Reconstruction Bureau, including an agenda for FATA reform
2000: General Musharraf establishes FATA Reforms Committee recommending FATA province, FATA council, and representation in NWFP Provincial Assembly
2002: General Musharraf enacts local government system in FATA (later repealed)
2004: Human Rights Commission of Pakistan calls to abolish FCR in FATA
2007: Benazir Bhutto petitions Supreme Court for extension of Political Parties Order to FATA
2008: Prime Minister Yousaf Raza Gillani promises to abolish FCR
2008: Cabinet committee established to recommend FCR reforms, Chairman Farooq Naek
2009-2013: Shaheed Bhutto Foundation (SBF) conferences with leaders throughout FATA on mainstreaming
2009: President Asif Ali Zardari announces future FATA reforms
2010: Political Parties Joint Committee on FATA Reforms (FATA Committee) established with mainstream political parties
2011: President Zardari enacts FCR amendments and Political Parties Order extension to FATA
2012: FATA Secretariat announces draft FATA Local Government Regulation
2013: Mian Nawaz Sharif promises during election campaign to bring FATA into political mainstream
2013: First-ever political party-based elections held in FATA
2013: FATA Grand Assembly approves 19-point Citizens’ Declaration for FATA Reforms (FATA Declaration)
2013: President Zardari receives FATA Declaration, announces future enactment of FATA Local Government Regulation, and calls on new government to enact new reforms for FATA
2013-2014: FATA Lawyer’s Forum calls for extension of High Court and Supreme Court jurisdiction to FATA
2013-2014: FATA Committee announces consensus political party recommendations for further reform, including election reform, local government reform and 11-point constitutional, political and legal reforms for FATA
2014: Former Khyber Pakhtunkhwa Governor Engineer Shaukatullah Khan calls for new local government system and FATA political mainstreaming
2014: Minister for States and Frontier Regions Lt. General (Retd.) Abdul Qadir Baloch announces support for FATA mainstreaming and future reforms
2014: Peshawar High Court refers Article 247 of the Constitution of Pakistan to government for amendment