BRIEF ABOUT FATA

INTRODUCTION

1.      The Frontier and the Tribal Areas, collectively constituting the Pathan Borderland, lying between the Koh-e-Sufaid and the Indus River, have remained a focal point for conquerors from Central Asia, Russia and Great Britain.  Its strategic location is beyond doubt. The Aryans, Persians, Greeks, Kushans, Huns, Mongols, Mughals, Durranis, Sikhs and British – all had their eyes on the vast and majestic panorama of the area Central Asia stretching from the mighty Indus to the Kazakh Steppe beyond Kizilkum desert.  The consistent exposures of the area to foreign invasions, trade caravans and political turmoil have influenced the society in every sphere of life.  In 1897-99, the year famous for the Tirah Expedition,  Sir, Winston Churchill has aptly remarked that  “Every rock, every hill has its story”.   

HISTORIC PERSPECTIVE.

2.                The Aryans traversed the passes in the Tribal Areas around 1600 B.C to settle down in the Plains of South Asia.  In their footsteps, Cyrus the Great made the area into a Province of the then Persian Empire in 550 BC.  In 327 BC Alexander the Great along with his Macedonian army marched into North West Frontier via Nava Pass in present day Bajaur Agency.  The tide of armies marching from the west stopped with the rise of Mauryans in India.  Gandhara civilization owes its origin to the period coinciding with 323 BC.  Kanishka – the Kushan King dominated not only Gadhara – the Peshawar Valley –but Afghanistan also.  The downfall of Kushan dynasty around 225 AD provided yet another opportunity for the invaders.  The advent of the white Huns in the fifth Century AD,  saw the downfall of Buddhism and devastation of Gandhara civilization.    With Mehmood Ghaznavi started the fresh wave of invaders from the Central Asia in 1000 AD, and established Afghan domination over the sub continent which lasted for almost 500 years.  The Mughals came into contact with the tribes in early sixteenth till 1707.  Ahmad Shah Abdali laid the foundation of the Durrani Dynasty in 1749, followed by Ranjeet Singh in 1834.   

3.                The westward march of the Sikhs was followed by a more vigorous, determined and farsighted imperial power - The British.   In 1849 the British annexed Punjab and with this annexation the East India Company established its direct rule in the Frontier and indirect administration over the tribal areas. 

4.                Nineteenth Century saw two imperial powers - the Czarist Russia and Colonial British – involved in a frantic race of expansion.  The British were determined to match their onslaught with a formidable defence.  The Afghan wars were fought to this end.  The Political Agencies and tribal area specific system of administration was evolved for the same purpose.  Afghanistan was carved out as a buffer state and an area falling within the exclusive sphere of influence of British and to the exclusion of the Russia in particular. The “Forward Policy”, “The close Border Policy” and above all the “Policy of Masterly Inactivity” were some of the masterpieces produced by tacticians engaged in the “Great Game”.

5.                1839 saw the devastating effects of colonial engagement with the frontier tribes.  It was for the first time in the history of this area that a regular army with all its imperial grandeur marched towards Afghanistan.  The tribes rightly saw this as a permanent threat to their independence that they had retained through out the recorded history.  The tribals consistently insisted on retaining their freedom while the imperial British were worried about the approaching danger of Russian influence.  The struggle concluded in evolution of the existing tribal system.  The epoch making decision of separation of the North-West Frontier from Punjab took place in 1901. It was given the status of a Chief Commissioner’s Province from 1901 to 1931.  In 1932 it was upgraded as Governor’s Province with Sir Ralph Griffith as the first Governor.  In August 1947, the Frontier Province and the tribal areas became part of Pakistan after a plebiscite.

6.                The history has yielded certain lessons, which need a brief reference before embarking on the present day status of the Tribal Area.  The lessons are:

(a)     The area now forming Afghanistan and North-West Frontier had seen perhaps more invasions than any other country in Asia, or indeed the world.  The people living here are used to struggles, movements and wars.  They do have the stamina to bear with adversity and never hesitate to engage in a dialogue even during the currency of active hostilities.

  1. The Tribal Area enjoyed its independent character throughout the dynastic era and the tribes administered themselves free of any extraneous influence or pressure and cultivated a distinct socio-judicial culture based on the principles of equality, self respect and fort suiting their idiosyncrasies.  This has enabled the people of the Area to develop a complete code of life – Pukhtoonwali is the synonym for this code.  The code is embodied in their social norms and embedded in their soul.  This is also called Rewaj. 

 

  1. The tribals have accepted loose and irregular controls in lieu of matching remunerations in the form of subsidies, allowances; concessions and favours.  These give and take agreements were always hammered out for securing a right of way either for marching armies or trading caravans.  The phenomenon has given them the perfect art of striking out favourable deals even in most unfavourable circumstances/conditions.
  1. The political relationship with the tribes was always maintained through the hierarchy of tribal chiefs/elders known as Maliks or Sufaid Reesh or Mashar in common parlance.  This relationship was comprehensively formalized and institutionalized during the British era.  The systemic tools, institutional mechanisms, orbit and axis dynamics, safety valves and reflex action modalities enshrined in the system speak of the effort put into shape it up.

 

  1. The people of the Tribal Areas have unanimously and out of their own free initiative and as a result of their “Collective Will” decided and expressed their loyalty and allegiance to Pakistan in an open Jirga.  This unconditional allegiance in 1947 signified their pacification with the emergence of independence and their desire to attach their destinies to Pakistan.

The Land

Federal Administered Tribal Area (FATA) is a narrow tract of land 600 km long and 130 km at its widest, encompassing an area of 27,220 sq km.  It lies between the north western Himalayan zone and the south western chain of the Sulaiman Mountains.  It has a population of 3.5 million, which is 2.6% of Pakistan’s total population.  To the east is the Province of North West Frontier and to its North West is turbulent Afghanistan.  Beyond Afghanistan are the geo-strategic and economically important Central Asian Republics.  The erstwhile gateway to the South Asian sub-continent is now the gateway to the economic highway of the new millennium.

The tribal areas are generally rugged and inhospitable.  Its long narrow valleys are punctuated by barren hills, scantly clothed with coarse grass and shrubs.  “Almost anywhere the foothills are bleak and uninviting, hard and craggy, splintered by frost and blistered by furnace heat according to the season.” The daunting environment thus offers precious little for survival.  Occasionally, however, the monotony of the craggy hills is interrupted by breathtaking vistas of picturesque valleys,  surrounded by peaks,  which rise to majestic heights of about fifteen thousand feet above the sea level.  A perfect description of the sharp contrast in the landscape is contained in Sir Olaf Caroe’s seminal work on the Pathans wherein he juxtaposes the “burning, boulder strewn hills and torrent beds” of Thall with that of the “Paradise beside the plains and willows that line the streams tumbling with the noise of constant water from the snows of the mountain wall above Parachinar.

FATA comprises seven agencies along with six frontier regions.  Thirty percent of these traditionally independent minded areas were under the direct writ of the British government.  After independence in 1947, the Government of Pakistan gradually extended its writ to 70% of the area.  After the tumultuous events of 9/11, the Army has extended the government’s writ albeit a tenuous one to the remaining 30% of the area, till recently termed variously as “inaccessible”  “no go area”, etc.

The Federally Administered Tribal Areas, since after partition, have been governed under a special dispensation enshrined in the Constitution of the Islamic Republic of Pakistan.   This dispensation is a continuation of the method of governance adopted by the British during the Raj, predicated because of their geo-strategic needs viz a vis Russia. 
The people

We, the Pakistanis, know the area as “Federally Administered Tribal Areas” [NWFP] as distinct from the “Provincially Administered Tribal Areas”, of approximately 27,220 Square Kilometers, having a “Pathan” population of about 3.2 million and comprising of seven Agencies and six Frontier regions.

‘James W. Spain’, in his book ‘The people of Khyber’ argues that a Pathan hates to call himself a Pathan — though that’s the name with which he is known in the West. He is of the view that the word in Hindi form designates “fierce neighbours west of Indus River”.  The British corrupted the word to “Paythan”, but the tribesmen are, ‘Pukhtun’ or ‘Pushtun’. Some even prefer to call themselves ‘Afghans’ but the word has nothing to do with the Afghan nationality. “Pukhtun, Pushtun or Afghan” are all used “depending upon the accent of the speaker”.
Spain compartmentalizes the Pathans who dwell in Tribal Areas into four groups — two based in Pakistan and two in Afghanistan. The first is the Durrani Tribe which has historically ruled Afghanistan and now stands Iranianised. The second is the Ghilzai who are true nomads and consequently the Durand line holds no sanctity for them. They move to Pakistan in winters and leave back for Afghanistan in summers.

They are known as “Powendas” in Pakistan and “Kuchi” in Afghanistan.  The third group consists of “Independent or free” tribes. They exist on both sides of the Durand Line and have a highly developed tribal structure. They include, amongst other; Mohmands, Afridis, Shinwaris, Orakzais, Bangash, Zaimusht, Wazirs and Mahsuds. This group lives in the tribal belt of Pakistan; i.e. between the Durand Line and the demarcated boundaries of the settled areas of Pakistan. Some live in settled areas too. The fourth group comprises of Yousafzai, Khattaks, Muhammadzai etc; and they dwell wholly in the settled areas.
Spain maintains that the “free tribes” have preserved their “Pathan Society” in toto. “They think of themselves as Afridis, Wazirs, Mahsuds etc; and their first allegiance is inevitably to their own clan. They live according to their own law, called Pukhtunwali, ‘the way of the Pathan’. Theirs is a rough and untrammeled democracy tempered only a little by the hereditary prestige of certain families and by the authority of their maliks, or chieftains, whose influence is based primarily on personal bravery, wisdom and strength”.

Sir Olaf Caroe, however, draws a clear distinction between those who “inhabit the plains and open plateau on the one hand and the highlanders on the other”. The former he feels are entitled to the Afghan name being of the “senior branch” and can be further sub-divided in “West Afghans” i.e. Abdalis (Durranis) and Ghaljis and “Eastern Afghans” i.e. Yusufzais and some others. In between the Eastern and the Western are thehighlanders and include Afridis, Khataks, Orakzais, Bangash, Wazirs, Mahsuds, Turi etc. These he says are “Pre-eminently the Pukhtuns, or Pushtuns. Generally, he maintains, they live east of Durand Line i.e. Pakistan and that they never ‘fell under the effective sway of any recorded imperial authority and now form the backbone of the so-called tribal belt”.

The ‘Independent’ or ‘free’ tribes of Spain or the ‘Highlanders’ of Sir Olaf Caroe are the same who are fiercely of an independent nature, who brook no interference or authority and who are almost steeped in the democratic traditions by birth.

The above insight into the personality of the Pathan or Pushtun was necessary to illustrate the chemistry of men who inhabit the tribal areas. Who are these men who have fascinated the Historians the world over, especially the British and what is so mystifying about the land on which they dwell?

‘Spain’ answers these questions by stating that he found dozens of references by Englishmen at the India Office Library in London indicating that “Pathans are a tribe of Israel”9. This idea gained ground amongst the writers as the Pathans, too, had strict code of conduct, had tightly knitted structures, had “Semitic features”, and a preference for biblical names. But he opines that this theory was effectively put to an end by ‘Bernhard Dorn’, Professor of Oriental literature at the Russian University of Kharkov and same was the view of ‘Sir Olaf Caroe’ after an exhaustive analysis.

Traditional Instruments of Governance
and Conflict Resolution

The edifice of the tribal society rests on certain institutions that have evolved through centuries.  These institutions not only hold the Pukhtun tribal society together but also act as instruments of conflict resolution.

                    The Pukhtuns as a people have unwavering belief in equality among individuals and among the members of the tribe regardless of lineage.  The Pukhtun society is structured in such a manner that the Malik or elder holds no sway or superiority over the humblest member of the tribe.  The emphasis on equality is also reflected through one of their old customs of “Vesh” (the redistribution of the tribal land every thirty years) based on the concept of Nikkat.

Nikkat refers to a sacrosanct yardstick for the distribution of share in profit and loss.  Share in all profits accruing to the tribe, be that employment opportunities in the Khassadar force or government works etc.  is based on a pre-determined scale of Nikkat.  This distribution yardstick assumes an even greater significance when one takes into the consideration the fact that almost all lands, pastures, forests in the tribal areas are in collective ownership.

                    Distribution in accordance with the “Nikkat” goes beyond the pale of profit like in the case of intra tribal clashes as well as conflict with government.  Even the provision of manpower, financial/logistical support and weapons are also worked out based on “Nikkat”.  Similarly, government tribal fines/reparations imposed under the provision of collective territorial responsibility are also apportioned on this basis.

                    Each section and sub-section within the tribe has its elders who are mandated to represent them.  This mandate is by consent and not unbridled.  These elders act as instruments of conflict resolution whether these conflicts are inter or intra tribal in nature or a running dispute with the government.  It may be pertinent, however, to make a distinction between the tribal elders, commonly called Maliks and the Lambardars in the Punjab or the Tumandars in Baluchistan.  A Malik in the Pushtun Tribal Society is an attorney of sorts of his co-tribesmen, consented to represent them.  He does not, however, enjoy an exalted status or undisputed authority over them.
The Constitutional position
Pakistan emerged on the world map as an independent entity on August 14, 1947, and as per then constitutional arrangements the country was, governed by the Government of India Act 1935, read with the Indian Independent Act of 1947.

Section 91 and 92 of the Government of India Act, 1935, dealt with the Tribal Areas and defined them as ‘Excluded Areas’ and ‘partially excluded areas’. The above instruments were replaced by the constitution of 1956 which was a short lived document. Its successor was the constitution of 1962. Articles 104 and 218 of the former while Articles 223 of the latter dealt with the Tribal Areas of Pakistan.

The constitution of 1962, too, was abrogated and the next basic law of our country was the interim constitution of 1972, followed by the constitution of 1973 which was unanimously adopted by the National Assembly in 1973 and still holds the ground.

Since the constitutional schemes concerning the Tribal Areas were almost identical in all our constitutions it would be prudent to focus attention on our current constitution of 1973.

Article 246 of the constitution of 1973 defines Tribal Areas to mean; (a) Areas in Pakistan which, immediately before the commencing day, were Tribal Areas and includes: (I) The Tribal Areas of Baluchistan and the North-West Frontier Provinces; and (ii) The former states of Amb, Chitral, Dir and Swat”. “(b) Provincially Administered Tribal Areas means:  (i) The Districts of Chitral, Dir and Swat (which includes Kalam) {the Tribal Area of Kohistan District) Malakand Protected Area, the tribal Area adjoining (Mansehra) district and the former states of Amb”. 

Federally Administered Tribal Areas includes; Tribal Areas of the Frontier Regions, adjoining the districts of Peshawar, Kohat, Bannu, Dera Ismail Khan, Bajaur Agency, Orakzai Agency, Mohmand Agency, Khyber Agency, Kurram Agency, North Waziristan Agency and South Waziristan Agency.

As stated earlier the spirit of Articles 246 and 247 of the constitution of 1973 is substantially the same as of the corresponding Articles of the 1956 constitution; in that, the Executive Authority of the Federation extends to Federally Administered Tribal Areas and the executive authority of a province to the Provincially Administered Tribal Areas.

The said Article further empowers the President and the Governor in his area (with the approval of the President) to make regulations for the peace and good Government of a Provincially Administered Tribal area which are within the legislative competency of the parliament or the Provincial Assembly; notwithstanding anything constitutional in the constitution. The same powers are vested in the President for the Federally Administered Tribal Area.

“Neither the Supreme Court, nor a High Court shall, exercise any jurisdiction under the constitution in relation to a Tribal Area, unless [ by law otherwise provides; provided that nothing in this clause shall affect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately, before the commencing day”.

The System of Administration
in the Tribal Areas of NWFP.

Having discussed, the land, the people and the constitutional status of the tribal areas, one may examine the instruments – both written and customary – which govern this tribal landscape and which may have a direct bearing on issues concerning Integration of the said areas into mainstream Pakistan.

The administrative relationship of these areas with the Government of British India rested mainly on treaties and agreements which the British had drawn up with the Tribes.

The effect of these treaties and other instruments were that the tribes were collectively made responsible for the maintenance of peace and order in their territories for the protection of means of communication passing through their areas and for other British interests.  In lieu thereof, the Government of British India made payments and allowances to Tribes and Tribesmen  -  normally through `Maliks’ who happened to be leaders of the Pathan Clan.  It be pointed out that “a Pathan Malik, however, is no more than a first among equals, and that only by dint of constant endeavour to prove that he merits his slight pre-eminence”15.  At times “Malikship”, too, was vested in a particular family.

After independence, no effort seems to have been made by the Government of Pakistan to correct the imbalance.  Rather things were allowed to remain as they were.  Fresh agreements were executed with tribal Maliks  -- representing their tribes and area and the policy of payments, allowances, bribery continues till date.  The objectives to be achieved, too, remain the same i.e. maintenance of peace and security, preservation of life and property, order on the roads to keep them open for trade and communications and to bind the tribes to remain loyal to the Government of Pakistan.

Day to day administration is looked after by a “Political Agent who is a Government representative as well as an employee – and he utilizes various measures to keep the tribes on the designated path.  Co-operation of the Tribal elders is achieved by employing, amongst other, the following measures :-
(a)     Maliki:       This is an allowance for the head of a tribe and is hereditary, subject to good conduct of heir of the Malik.  (Head of tribe).

          (b)     Lungi:       A personal allowance for individual service.
(c)     Mawajib:  Allowance paid to be entire tribe biannually.

                   The essence of the above it to ensure that all developmental activities proceed smoothly.

FATA may be divided into administered areas, protected areas and inaccessible tribal territory.  Administered areas are those where the political agent exercises Judicial Jurisdiction through the FCR (Frontier Crimes Regulations) and at times by executive action.

                    Cognizance, both of civil and criminal disputes, in un-administered areas is usually taken by the tribe through `Jirgas’ under the tribal customs but the Political Agent does exercise some indirect control and can influence the outcome, albeit a tenuous one.  Inaccessible areas and (ii) Politically and administratively inaccessible areas. There is no form of control or governance, direct or indirect.  All civil and criminal disputes in these areas are decided and finalized by the tribesmen themselves. 

                    As pointed out earlier `FATA’ was not a part of the settled area of Pakistan.  This meant that the normal laws of the country were not applicable to these areas.  The following administrative and legal arrangements were put in place for the governance of Federally Administered Tribal Areas.

STRENGTH &  WEAKNESSES OF TRADITIONAL SYSTEM
VIS-À-VIS PAKISTAN POLITICAL SYSTEM

Present System of Governance
In order to evaluate the present system of Governance and to evaluate the  strength and weaknesses,  an analysis has been carried out with particular reference to the following distinctively important subjects:-
          a.       Administration.

  1. Judicial System.
  2. Law & order.
  3. Development
  4. Revenue

Present Pattern of Administration -- Analysis

                    The Tribal Areas are administered by the Governor NWFP as agent to the President, representing the Federal Government.  The tribal areas are divided into Political Agencies and Frontier Regions (FRs).  The system of administration is being discussed below with reference to the previous and current modus operandi.

a.      Existing system

  1. In the present pattern of administration, except for small areas taken for government establishments and roads called Administered Areas, tribal society is left to govern itself by its customs and traditions.  However, tribesmen are encouraged to bring their problems/disputes to the Political Agent who settles these according to the customs of the area.
  2. The role of Political Agent is better described as half-ambassador and half-governor.  He administers his agency on behalf of the Government with a necessary mixture of tact, patience, wit and sympathy.  He is the kingpin in the agency, around whom revolves everything.  The duties of a Political Agent are manifold and all encompassing  - he is Magistrate, Police Chief, Director Health and Education and Chief Engineer as well.

The Jirga System:  Misunderstood?
When one speaks of the `Jirga System’ in the settled areas the impression it generally conveys is of a harsh legal system which, somehow, exists today in areas around Peshawar, Baluchistan, the tribal belt of Punjab and parts of Sindh.  It is assumed that perhaps the system was good enough for primitive societies and that it somehow operates to the detriment of the people and works only in favour of the tribal chiefs and `Maliks’ and that they ruthlessly use this system to crush the dwellers by fastening and tightening their grip over the nomadic or illiterate people who are cursed by the system to remain in perpetual subjugation.

The above impression has been strengthened over time by the print media when it throws up selected cases -- especially those concerning women  -- thereby depicting the “high handedness” and “arbitrariness” of the Jirga Justice.

The Tribal Jirga:  The unwritten law.
The above is not the whole truth.  Rather very powerful and potent arguments could be forwarded favouring traditional Jirga.

The tribal Jirga, like the British constitution has its roots in centuries old customs and conventions.  Loosely stating a Jirga is an assembly of Pathan dwellers wherein the rules of attendance are clear (every adult may attend – In some tribes, however, entitlement of participation are clearly indicated) decisions are taken by unanimously backed by collective sanction of the tribe.  (Burning of the culprit’s house is the penalty for contempt).
James W. Spain describe a traditional Jirga as under :-
“A Jirga in its simplest form is merely an assembly.  Practically all community business, both public and private, is subject to its jurisdiction.  In its operation, it is probably the closest thing to Athenian democracy that has existed since the original.  It exercises executive, judicial and legislative functions, and yet frequently acts as an instrument for arbitration or conciliation.  Mogul ambassadors, Sikh Generals, British administrators, unrepentant tribesmen, Pakistan politicians, and American Celebrities have stood before Jirga during the years”.

The tribal Jirga is highly organized and over the centuries it has developed its own rhythm and momentum.  It is backed by centuries of customs and conventions, which have accorded it, due respect.  It normally is a round table conference with no presiding officer and acts in a Democratic way.  The gathering is very informal and it can meet, almost anywhere; under a tree, in a school etc.  All are equal and the affected parties are afforded opportunity to put across their viewpoints.  Decisions are unanimous and solemnized by a prayer.  If the above cannot be achieved in full, the Jirga breaks up.  The essential point to be noted here is the Jirga’s role “is to settle peacefully an existing situation more than to judge right or wrong, determine guilt, or to pass sentence”.

In deciding any matter, the requirements of `Pukhtunwali’ the circumstances of the issue under discussion, the character of the individuals and the generally acceptable scale of compensation are kept in view.  Retaliation in a subtle way is thus discouraged.

The Jirga of today has basically the following functions :-

  1. It broadly regulates every day life of the tribes.  All issues are discussed i.e. settlement of blood fuels, the site of a new mosque, how to interact with other tribes etc.
  1. It acts as a channel for a dialogue or as an intermediary between the government and the people and all matters which needs to be discussed and thrashed out with authorities are within the domain of the Jirga.

 

iii) The third is to act as an official Jirga and is composed   of men appointed by an official of the Government of Pakistan.  This Jirga has nothing to do with the tribal Jirga and acts as an aid to an officer trying offences under FCR.

Before proceeding further one may discuss certain peculiarities which are specific to the area and which may influence the integration strategies or possible solutions.

The first is the sensitivity of the Durand Line – the official border between Pakistan and Afghanistan.  The same tribes inhabit on both sides of the official demarcation line.  “The agreement allows easement rights to same tribes straddling both sides of the Durand line in the form of unhindered ingress into one another’s quarters which gives an added sensitivity to the border.   

The second is to acknowledge the fact that coercive measures or military solutions would not be helpful.

The third is to accept that the status quo policies of the Government of Pakistan have almost kept the areas in a primitive state.
 
Prime facie, the tribal system may seem loosely knit, but a deep look inside suggests an altogether different picture.  In fact, tribal society rests on some very strong community institutions which are well coordinated and tailored to negotiate the high velocity currents which keep emerging from this strange land.  Some of these may sound absurd, bizarre and out of this world, especially in the new millennium, but all the same, have proved their efficacy even in modern times.  An account of these institutions is mentioned below :-
Judicial System – Analysis

  1. Existing System.   Historically the tribal areas have always remained outside the ambit of the judicial system applicable in the adjacent settled areas.  Presently FATA & FRs in view of their special constitutional status are excluded from the jurisdiction of High/Supreme Courts.  The judicial system in tribal areas hinges on the troika of jirga system, the PA and the FCR of 1901.  In all the criminal and civil disputes two system are followed i.e. Riwaj (the customary law) and Shariat (Islamic law).  Riwaj is the code of tribal customs and almost all the cases are decided under the same.  Even in the FCR, the council of elders (Jirga) base their verdict on Riwaj.  The Administration takes cognizance of only those offenses which are committed in protected areas and does not generally interfere in the offenses occurring between the tribes in the Tribal territory of which no cognizance is taken.  However, the Administration does interfere in case of offenses taking place even in tribal territory, beyond the protected area, in case State interest is involved.   This interference could be direct, through the use of force, or indirect, i.e. through Maliks and Khassadars, by invoking the tribal/territorial responsibility depending upon the gravity of the offense. 
  1. The Jirga System.  Individual trivial matters are discussed and settled by tribesmen themselves, without the aid or assistance of any outside agency.  The disputes and quarrels are taken to the jirga for amicable settlement, which on the basis of `Riwaj’ decides the case.  Since the personnel constituting the jirga are the accepted elders and the respectable people of the community, the parties usually accept their decision.  There are three main tyupes of jirgas i.e. Sarkari jirga, Qaumi jirga and Shaksi jirga; details of which are as following :-

 

  1. Sarkari Jirga.  It is composed by PA to settle inter tribal disputes.  It consists of a group of elders designated by the magistrate (The PA or APA) who are required to give a finding as the guilt or innocence of the accused in a criminal case or civil dispute.  The Frontier Crimes Regulation 1901, authorize settlement of quarrels arising out of the blood-feuds, relating to zun, zar, zamin (women, wealth and land), and all other questions affecting Pakhtun honour and way of life, by submitting them for arbitration to a jirga.  The jirga is expected to visit the place of the crime and dispute, inquire by its own methods to state the facts and the solution.  On conviction for murder the jirga could recommend up to fourteen year’s imprisonment, being the maximum penalty.
      1. Qaumi or Ulusi Jirga  It is formed by the tribe itself to settle intra tribal disputes.  In this case a representative gathering is held, comprising all sections of tribes to deliberate on the issues concerning the whole community or the tribe.  Therefore, Qaumi/Ulusi jirga is the assembly of elders of each household of a certain villages to discuss collective matters such as collective property like Shamilat, rights and distribution of irrigation water, or common concerns like, selection of the possible site for a school, an irrigation projects etc.  The tribesmen might even assemble to plan ways and means in pursuing government to assist and approve different projects of community development.  A Qaumi jirga may be held to stop encroachment on their land, forest or water resources by neighbouring village or a hostile tribe. 
      2. Shakshi Jirga.  In case of a dispute between two individuals or families, in order to avoid bloodshed they ask the elders to form jirga to settle the dispute.  Jirga members would gather in council, listen to the parties and judge the rights and wrongs of the case.  Mostly the jirga members try to find a compromise to put an end to the dispute, with justice to all.  It may be interesting that both Ulusi and Shakhsi Jirgas, though perform useful functions and assist the state functionary in discharging its responsibility of dispensing justice, they are not constituted or set up under any official direction or decree, but derive their authority to award judgment from the people.  No person can question the verdict of the elders as it would amount to defiance of the whole community.

 

Political Administration 
A wide variety of specific power, the exercise of which directly effects individual rights and interests, are vested in a single individual  --  the Political Agent.  He performs not only administrative but judicial and quasi judicial functions also.  Under the powers conferred on him, the Political Agent is vested with jurisdiction of a Session Judge in criminal cases, and with full powers as a court of first hearing in civil cases, whereas, the Assistant Political Agent acts like a first class Magistrate.  They are assisted by a Tehsildar for revenue and treasury work, and Political Naib Tehsildar for revenue and treasury work, and Political Naib Tehsildars along with their Political Muharrars (office assistants) for criminal and civil cases.  The combination of executive and judicial functions has resulted in an arrangement contrary to the established norms of justice.  Hence the system of justice tends to be obscure by having no distinction between judicial and administrative functions.  In case of FRs, DCO of adjoining district holds the judicial powers of PA and extend them through APA.

Frontier Crimes Regulation (FCR)
After annexation of the North-West Frontier Province (NWFP) by the British government in the year 1848, they found that the ordinary civil and criminal laws were not suitable for these areas.  Although civil disputes were quite few in those days, however, the incidence of crimes, especially murders and dacoities, were so alarming that the ordinary laws and courts found it impossible to check them.  The worst affected district was Peshawar.  So, the first Regulation known as the Frontier Crimes Regulation of 1871 was promulgated for the suppression of crime in the frontier district.  Later in order to make the law more effective, the Punjab Frontier Crimes Regulation of 1887 was issued which was again further strengthened in 1901 by the Frontier Crimes Regulation which is still applicable.  It is the much discussed “draconian law” which gives unchecked and unlimited powers to the Political Administration and the same are not challengeable in any court of law.  However from 1997 an appeal in the shape of revision before a tribunal consisting of the Home Secretary and Law Secretary NWFP can be made.  In FRs also FCR is applicable.

MODERNIZATION TRENDS IN VARIOUS AGENCIES

Development Perspective
Background
32.              The Federally Administered Tribal Area (FATA) is strategically located between the Pakistan-Afghanistan border; the historically famous and significant Durand Line, and the settled areas of NWFP. FATA has historically and traditionally had a unique administrative and political status during British rule of the sub continent. The British controlled this area through a combination of effective Political Agents in each Agency and tribal elders, under their patronage, called “Maliks” - while leaving the people with their traditions and internal independence. Pakistan inherited this system and more or less continues with it even today.

33.              The area comprises seven agencies namely Bajaur, Mohmand, Khyber, Kurram, Orakzai, North Waziristan and South Waziristan. In addition, six special areas attached to Peshawar, Kohat, Bannu, Tank, Lakki Marwat and Dera Ismail Khan are generally known as Frontier Regions (FRs). The total area of FATA is 27,220 sq kms which is about 3.42% of the total area of Pakistan. The population of FATA as per the 1998 census is 3.2 million (2.40% of Pakistan’s population and is almost entirely rural with an agriculture based economy.

34.              FATA acceded to Pakistan in 1947, and is treated by the Constitution as a special area under Article 90 and Part XII, Chapter 3, Articles 246 and 247. Governor of NWFP, as Agent of the President is the Chief Executive for FATA. SAFRON is the administrative Ministry/Division for FATA in Federal Government.

  1. Current Development Status of FATA

 

Since the independence of Pakistan, FATA has not been accorded the same priority in terms of the development process being undertaken in other parts of the country. In the allocation of developmental resources for provinces, regions and other areas of the country, FATA is perceived as not receiving its due share according to its population/area or the actual development requirements of these areas. In the sixth, seventh and eighth five year plans, the total allocation for FATA was only Rs. 6.24 billion, Rs. 7.3 billion and Rs. 9.9 billion respectively. Prior to 2001, the entire annual developmental allocation of FATA Annual Development Program was less than Rs. 1 billion annually. This neglect in developmental resource allocations resulted in FATA constituting some of the most backward parts of Pakistan that lagged behind in all spheres of development as compared to other parts of the country.

 

  1. Recent Developments in FATA

Some of the basic socio economic indicators of FATA in comparison with NWFP and Pakistan illustrate the developmental lag in the area (Table 1).

 

Table 1 – Socio Economic Indicators

ITEM

Pakistan

NWFP

FATA

Irrigated area as % of cultivated area

82.00

52.00

40.00

Population per irrigated hectare

9.00

23.00

44.00

Cultivated area as % of reported area

37.21

30.09

7.35

Literacy rate (%)  in 1998
Male
Female

45.00
56.50
32.60

37.30
52.80
21.10

17.42
29.50
3.00

Primary Enrolment Rate (%)

86.00

81.00

38.00

Population/Doctor

1404

5054

7670

Population/Hospital Bed

1737

1594

2290

Roads per sq km of area

0.32

0.15

0.17

            Source: FATA Secretariat

As can be seen from the above data, FATA is severely lagging behind the rest of the country in terms of some of the very basic socio economic indicators. The present Government has made serious efforts to improve the historical situation and has significantly increased the allocation of developmental resources for FATA, during the last few years. Accordingly, the ADP allocations were increased to Rs. 1.17 billion in 2001-02 and registered a continuous increase, reaching Rs. 6.2 billion in 2006-07 (an increase of 430%). This is a remarkable improvement in terms of resource allocation as compared with the past years. Despite the commitment of the Government, the challenge of bringing FATA into the economic mainstream of the country is enormous, which still requires additional economic resources to address the decades’ long developmental lag.

  1. A Sustainable Development Approach for FATA (SDP 2006-2015)

The underlying premise for the development strategy is to use it as a means of bringing the tribal people into the mainstream of national fabrics. A tried and tested option for such efforts is to follow the “sustainable development approach”, where all interventions of different sectors and sub sectors augment and inter link with each other providing flexibility and a resource pool for immediate and future needs. The said approach due to its flexibility is geared for an adaptable phased development i.e. an immediate fast track intervention approach followed by a steady consolidation track to ensure that the validity and benefits are retained for a much longer time. Therefore, a “FATA Sustainable Development Vision” (SDV) was prepared having a 5 year fast track intervention phase followed by a 4 year consolidation phase to direct all the future FATA ADPs and additional investment interventions for an equitable growth and sustainable development of the area.

  1. Methodology

 

After developing Sustainable Development Vision, FATA Secretariat in partnership with The World Conservation Union (IUCN) Pakistan is formulating the Sustainable Development Plan (SDP) for FATA. To prepare the FATA SDP a consultative approach has been followed by involving the elected representatives, from both houses of parliaments, agency counselors, political administration, enlightened and educated FATA citizens and all the line directorates of FATA Secretariat in a form of consultative workshops. A series of detailed meetings were held with the line directorates of the Secretariat to carry out a situation analysis, highlight the main issues in the sectors/sub sectors and to identify priority sectors/sub sectors for future investment. The situation analysis includes an in-depth institutional analysis within the directorates and at the secretariat level. The situation analysis form the basic ground for FATA SDP that has identify immediate areas for interventions and linkages of sectors and sub sectors with each other for greater multiplier effect. The plan will also recommend a proposed integrated implementation strategy for a 5 year intervention phase and a 4 year consolidation phase for the sustainable development of the area in the years to come. A monitoring mechanism for course correction and redirection to achieve tangible impacts and effects during the plan period will also be proposed. In consultation with the Secretariat, the plan will also provide a proposed investment portfolio for both the intervention as well as the consolidation phases.

  1. Components of SDP

 

The Plan will address almost all of the sectors and sub sectors that are presently the developmental mandate of FATA Secretariat. However, for complementarily and integration purposes they have been grouped here into thematic areas so that the targeted additional investment in a particular sector has a greater multiplier effect. The main thematic areas of the Plan are:

i)       Natural Resources: FATA is rich in biodiversity. Wide variations in physical features and climate have produced diverse landscape and ecosystems that need to be investigated. Key measures such as comprehensive analysis of species, development of database and an education and awareness programme to promote conservation and sustainable use of biodiversity are necessary. FATA has diversified natural resources with an immense potential to positively contribute to the economic uplift of the poorest sections of society, provided they are managed in an equitable and sustainable manner. The natural resources that can be important economic drivers are:

  1. Agriculture: Presently FATA has a cultivated area of 200,000 hectares but only less than half i.e. 82,000 hectares are under irrigation, while the rest are rain fed. In addition 180,000 hectares - categorised as culturable waste - can also be brought under productive use with additional investment. With such a huge land resource base, the agricultural sector can play a very important role to alleviate poverty and improved livelihood of the poor and marginalized sections.

b) Livestock: Due to present subsistence agriculture and limited means of livelihood, the majority of the people have some livestock assets for their daily needs and as an alternate for income. The sector has a potential to generate a considerable economic activity within the area and can play an important role in the economic uplift of the poor people within the medium term. The additional investment will be targeted on breed improvement, semen production, introducing exotic breed, extension services, capacity building of the veterinary workers/extension of veterinary services, feed production units and allied infrastructure facilities.

  1. Forestry: An integrated and multi-dimensional approach will be adopted in the Plan to enhance the productive contribution of forests and forestry products in the economy of the area. Additional investment will be targeted to non timber forest products for increasing the economic benefits, on farm forestry to meet the fuel wood demand and to reduce pressure on existing forests, joint forestry management practices for sustainable management of existing forests, community based forest nurseries and afforestation initiatives to increase the forest cover and sustainable management of range lands to provide fodder and complement the livestock sector development.
  2. Fisheries: The fisheries sector has so far been not given due importance in overall development of the existing natural resources, but it has all the potential to act as an immediate economic development instrument provided its existing and future potentials are tapped properly. Additional investment will go into development of new hatcheries, promotion of private hatcheries, expansion of the existing infrastructure for scaling up, capacity building of local communities in fish farming and tapping the potential in fresh water as well as harvested water in small dams.

ii)      Cultural heritage: The cultural heritage of FATA is rich. The tribal arts and crafts, historical passes/places and the natural beauty of the area have a potential for the development of tourism as additional economic driver in FATA. The Plan’s approach for this important sector will be in phased manner and in short term will focus on promoting inter tribal sports tournaments, tribal visitors events to demonstrate the economic benefits of the tourism within the traditional and cultural boundaries. The additional investment will be targeted in developing tourist facilities and services in the potential areas of the FATA to provide allied infrastructure network necessary for development of the sector.

    1. Basic Human Services: The provision of basic human services - including clean drinking water, sanitation education and health - is comparable to what exists in the backward areas of the country. Unless the delivery of these services is improved drastically and the coverage is extended adequately economic prosperity alone cannot bring a positive change in the quality of life of the common people. The Plan will, thus, focus strongly on the delivery of basic human services.

 

    1. Water Supply: The provision and coverage expansion of water supply to majority of the people is constrained due to the limited subsurface source. Plan will target investment in carrying out a detailed study on the source availability, recharge rate vs extraction rate, exploring the potential of feasible surface source and water harvesting options for drinking purposes.
    2. Sanitation: The safe passage of waste water from existing settlements in FATA has been completely ignored resulting in the poor communities spending a considerable amount of monthly income on health care thus draining their limited financial resources. The Plan will target this area on priority and resources will be made available to provide safe sanitation facilities in settlements to reduce health hazards to the residents.
    3. Education: The Plan will emphasise the importance of education and will allocate additional resources for qualitative and quantitative education services. Special incentive packages will be designed both for teaching staff and the students to raise the literacy level in general. The extension of basic education facilities will be taken up on priority basis to provide this facility within accessible distances. Teaching staff capacity building will be done in a phased manner to provide trained teachers at all levels for quality and contemporary education. Higher education facilities will be provided in such locations where maximum number of population can benefit. In addition investment will focus on community clusters schools, provision of buildings to shelter-less schools, upgradation of primary and middle schools fulfilling the requisite criteria, industrial home centre for females in high schools, hostels and transport facility for female teachers and students.
    4. Health: Both preventative health care and curative health care will be targeted in Plan. Extension and up-gradation of existing health facilities will be recommended on immediate basis but in parallel the establishment of new facilities will also be initiated to expand the coverage to larger percentage of population. Primary health care facilities coupled with a comprehensive awareness campaign will be a key short term intervention of the Plan. For ensuring the availability of heath professionals, paramedics and health workers, local youth - both male and female - will be encouraged through a special incentive package and provision of required skill training intervention through the establishment of an exclusive medical college for FATA and public health schools. On the preventive side focus will be on the awareness/vaccination campaign for communicable diseases particularly Hepatitis and the establishment of screening centres. There will be special emphasis on maternal and child health and interventions will focus on improving MCH indicators.
    1. Infrastructure Services: Proper infrastructure is a key to economic, social and human development of an area and therefore is regarded as the backbone of overall development. The Plan will focus on environmentally sound infrastructure and on such areas which have greater multiplier impacts and which can bring a value addition to other services resource.

 

    1. Roads and Bridges: FATA has a reasonable network of metalled and un-metalled roads as it has 3000 kms of metalled roads and 2000 kms of un-metalled roads. Additional investment is required for improvement and rehabilitation of existing roads, developing new roads focusing on economic roads that have the potential of generating economic resource development particularly farm to market access. In addition there will be focus on improving/constructing strategic roads and bridges that have more importance in terms of inter agencies connection, tehsil with agency headquarters, inter tehsils connections and opening of new valleys in FATA. The possibility of establishing Reconstruction Opportunity Zones (ROZs) in FATA is being explored and the key investments in this sector will provide the basic infrastructural network for the establishment of the proposed ROZs. This services sector will also act as major employer for the FATA population due to its labour intensive nature.
    2. Irrigation and Power: As mentioned earlier, the Agriculture sector has a tremendous potential to become a lead sector for future economic growth in FATA. In order to develop agriculture as the main driver for economic growth, the irrigation and power network plays an essential key role. The irrigation network so far has performed well and Plan will capitalize on its existing success. Major investments will be made available for water harvesting to provide additional water for irrigation, drinking and fish breeding.
    1. Economic and Human Resource Development: The Plan will centre around this key thematic area due to the fact that all the gains of other sectors, sub sectors can only be sustained and consolidated if the economic empowerment takes a speedy path. Economic development of area revolves around greater trade, commerce and business to provide large scale employment and earning opportunities to all sections of the society. The individuals of a society are the key drivers for scaling up the economic activity within their society provided they are better trained and skilled to contribute productively in the process. The Plan  will focus primarily on:

 

      1. Mines, Minerals and Energy: FATA has large deposits of precious minerals but this important potential has not been explored to its maximum quantum as yet. The additional investment will be targeted not only to the exploration of the minerals but also the value addition at the local level and for developing the market linkages with other parts of the country. The Plan will give priority to mineral exploration of copper, coal, gold, marble soap stones, oil and gas, as high value minerals. The provision of infrastructure for the supply of electricity and gas is not cost effective in remote rural areas therefore alternate energy sources, using existing coal deposits for electricity generation, will be thoroughly tested and introduced to achieve cost effectiveness. The sector will primarily focus on the development of infrastructure in mineral bearing areas, mechanized marble mining in FATA, exploration and evaluation of coal in FATA, exploration and evaluation of Waziristan copper, enhancing mining and handling capabilities of mine-owners in FATA and capacity building/strengthening of the Directorate of Minerals specially in collective mining techniques and conflict resolution to avoid tribal land ownership issues.
      2. Trade and Commerce: This is a relatively established sector due to its demand based nature but still needs attention and realignment in the backdrop of geopolitical changes and development in neighbouring areas. Most of the FATA borders Afghanistan, and as the situation in Afghanistan stabilizes in the future its reliance for trade and commerce on FATA will increase. The additional investment will focus on a comprehensive market based studies for capitalizing on its locational advantages additional investment can be made in redirecting and organizing this important component of economic development.
      3. Industries: So far in FATA marble related industries are common and no considerable efforts have been made to explore the potential of industrial sector development. Even the establishment and development of cottage based industries has not been explored which can bring quick economic returns at house hold levels and boost the economic activity in the area.  Plan will address this key area on priority basis and through comprehensive market based studies will identify growth centres and clusters for small scale industrial areas and cottage industry development. Investments will be targeted for development of growth centres and clusters to harness and use the local potential for greater economic gains.

The economic initiative focuses on the establishment of Reconstruction Opportunity Zones in backward of Pakistan including FATA. All the interventions proposed in the development plan are aligned to preposition FATA for the establishment of one or more ROZs in terms of infrastructural requirements, availability of skilled/semi skilled labour force, connection to the major trade routes/networks and focusing on local potential.

      1. Human Resource Development: FATA has a large human resource but most of its youth end up as daily wage labourers within and outside the country. The Plan will provide additional investment in market demand oriented skills development for the uneducated and under educated and vocational training to the productive educated sector to find better jobs in the country and outside FATA. The sector will focus on establishment of technical vocational training institutes, skill development centres, feasibility studies and institutional development.

 

36.              Development Targets for FATA SDP
As part of the Sustainable Development Plan for FATA development targets for key sectors (Annexure A) have been identified. It is expected that with the achievement of these targets significant improvement will be brought in the living standard of the people of the backward areas of FATA.

 

37.              Implementation Strategy
The FATA Secretariat is presently undergoing reorganization. This new structure will enable the FATA Secretariat to handle the massive challenge posed by the new and considerably enhanced FATA Development Portfolio in the coming years. The Development Plan also focuses on building the capacity of the various departments/directorates in the FATA Secretariat by providing resources for additional incremental staff, consultancy support, improved internal processes, covering infrastructural gaps and technical backstopping. Various schemes for building the capacity have already been included in the FATA ADP 2006-07. In addition a FATA Development Authority based on a public/private partnership model is being established to effectively manage the developmental initiatives in some key investment areas including minerals, industries, vocational trainings etc. and to build effective public-private partnership models to generate economic activity and tap the enormous economic potential in FATA. The FATA Secretariat is also finalizing the establishment of a FATA Rural Support Organization on the pattern of SRSP, PRSP etc. to build social capital in FATA, organize communities, implement small schemes and ensure the involvement of communities at all level of development.

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38.              In order to improve monitoring of the various developmental initiatives, FATA Secretariat has established a Monitoring Cell at the Secretariat level. The key objective of the monitoring cell is to establish monitoring mechanisms for the development projects in FATA, for making the implementation of such projects more efficient and effective. This entails regular monitoring of projects/schemes, conducting interim evaluation of all major schemes/programmes and carrying out impact evaluation of major schemes after one year of completion.

39.              For the major infrastructural projects, the Plan recommends engagement of design and construction supervision consultants, hired from the local market through a competitive process for ensuring sound engineering designs, quality control, independent supervision and environmental protection.

40.              The Plan also recommends involvement of the private sector in spheres where adequate capacities are lacking in the public sector for building efficient and effective public-private partnership models and outsourcing for efficiently undertaking activities in various sectors.

41.              To address the issue of the non availability of accurate and reliable data, FATA Secretariat is committed to conduct Multiple Indicators Clusters Survey (MICS) in the current financial year and a scheme has been included in the FATA ADP 2006-07.

42.              FATA Secretariat is in the process of adopting a market based composite schedule of rates on the pattern of the Government of Punjab keeping in view its unique developmental requirements. This is will be more responsive to the market dynamics, in terms of frequent changes in the rates of various commodities and will facilitate timely completion of the development projects.

43.              To meet the future land demands for the additional facilities, utilities and services in the FATA, the Plan recommends identification of potential sights and their subsequent acquisition in advance for timely completion of the proposed facilities and utilities.

44.              The main thrust of Plan will be centred on integration and cohesion and complementarities amongst various development sectors and sub sectors to enhance the perceived benefits to higher scale and larger geographic spread. The scaling and spread of benefits aims ultimately to have a positive impact on the livelihoods of the common people thereby removing the prevailing disparities among the various segments of FATA’s society.

45.              The success or failure of the vision cannot be assessed without a systematic monitoring process. To this end, the vision will develop indicators to assess progress towards sustainability. These indicators will take into account key facets of each sector and will be designed to cover all major components of the sustainable development paradigm, moving beyond purely economic indicators which tend to ignore a variety of critical social and environmental realities. This exercise will be led by the FATA Secretariat making use of both local and international experience.

46.              Conclusion
The conceptual framework of the FATA Sustainable Development Plan has been explained above and a detailed Plan formulation covering the development intervention period, consolidation phase, institutional strengthening of the FATA Secretariat, implementation strategy and a monitoring mechanism has already been undertaken. At this stage, a tentative investment portfolio of Rs. 130.00 billion has been identified which will be further fine tuned and firmed up. A comprehensive FATA Plan will be ready for the approval of competent forum by the end of December 2006.

MEASURES TO INDUCT FATA INTO
NATIONAL MAINSTREAM IN 10-15 YEARS

The events in South and North Waziristan and Bajaur Agencies may have added a sense of urgency to refocus on the matter.  The need of induction of these areas into the national mainstream can be viewed from different angles  -- Political, administrative, legal, financial, economic etc.  Initial thinking on these alternates has shown that different perceptions generate different outcomes.  For example, from an administrative,  legal perspective, assimilation seems to be an immediate national imperative.  Governance of these areas, under a different system, is at best tenuous and make these areas the odd man out within the Federation with serious implications for maintenance of order in the entire country.   However, when viewed from a financial and economic perspective, the outcome is completely reversed.  Here it is easy to build a case for continuing with the existing system given the paucity of economic opportunities in these areas, as well as the weak capacity of the State for substantive constructive economic and financial intervention, in the short or medium term.  Briefly, this rather shaky balancing of the opposite in terms of various policy options does bring very vividly, the need to tread in a well-calibrated manner.  This does not mean that it should become bureaucratic foot dragging.  However there is a need to move with measured steps towards the coveted goal of integration.  This is in view of the events of the recent past wherein real incidents (Malakand uprising of 1994 with Bajaur Agency being the epicenter) which were directly related to matters of governance such as those that fall under the purview of assimilation.

While thinking about this subject, it is also important to keep the on-going process of devolution concurrently in view.  The devolution powers plan is one of the most important initiatives of the Government.  It is now in its early stages of infancy.  It seems more important to keep attention focused on its success given that it impinges upon the mass of the population within the country.  Simultaneous initiatives on integration and devolution may thin out the resources of the Government to a level that may be detrimental to both these initiatives.  Moreover, integration is peculiar to two Provinces only, which are otherwise low on the indices of development.  Embarking on this course may have further deleterious effect thereon.  This therefore provides another reason for ‘erring on the side of caution’ in the matter of integration.

Going into the integration process and its modalities, it is important to keep in view that it would be composed essentially of two parts  --  the “coercive” and the “positive”.  Legally speaking the “coercive” elements of the new system are likely to be predominant in terms of affecting the population.  These would be in the form of a new taxation system as well as the criminal justice and dispute resolution mechanisms of the settled areas.  The positive effects of integration are by their very nature longer term and require resources that shall need to be ensured over a relatively long period say 20-30 years.  In order for the induction or integration  to be successful i.e. to have general acceptance, it is important that both the above proceed simultaneously or should have a certain balance to make “change” tolerable.  Unfortunately, the “negative” or coercive elements by their very nature tend to speed much ahead of their positive counterparts.  This may upset the balance requiring a constant application of force to maintain status quo.  Whether this is possible for a prolonged period is not that clear and needs further debate.  For sure, this would require resources that would need to go much beyond those guaranteed under the various instruments (National Finance Commission, External Support etc.).

The economy and geography of these regions also present some formidable problems in the context of integration.  The modern State as implemented through the instruments of legal rights and liabilities presumes a basic minimum economic stake arising out of a general private and individual ownership and attachment to land.  This is almost non-existent in these areas.  The subsistence economic opportunity that the geography provides requires a highly co-operative mode for survival.  This is reflected in joint tribal ownership of property and institutions such as Nikat, Moajib and Joint Territorial Responsibility etc.  Lack of cultivable land and extremely harsh climate leave a small range of economic possibilities such as export of labour and trading.  All these factors are important while considering induction or integration, as these are inextricably linked to the matter of taxation and particularly to the development aspect of the induction process.

One of the important objectives of the governments in the recent past has been to try to integrate the tribal areas into the national mainstream of the country.  This is easily understandable given the fact that in most periods of history the people of these areas remained in a state of light or major war with the rulers.

Induction or integration strategies have generally been of two kinds; integration by force of arms and diametrically opposite to this approach is the one that advocates assimilation through development and economic efforts by the State.  In practice, combination of both these approaches have been adopted by the successive regimes.

The section is a critical review of these approaches, particularly in the post partition era.

The Coercive Approach
The advocates of the coercive school had earned their spurs during the hey days of the Forward Policy.  They were of the firm belief that since the adversary in the tribal areas was armed, reckless and uncivilized, civilian methods of control were inadequate and that the problem needed a military solution.  The advocates of the coercive approach placed immense premium on the disarmament of the tribes.  In their opinion “the tribesmen’s propensity to violence and insurrection could only be curbed by disarming them otherwise every mile of road constructed would be a liability as since it would have to be guarded.

The initial attempt towards disarmament was to begin with the Tori Khel Wazirs, the Bhittanis and the Mehsuds with a simultaneous clampdown on the indigenous arms manufacturing units in Darra Adam Khel.  The disarmament proposal, however, was vetoed by Governor N.W.F.P., Sir George Cunnigham because of its impracticability and apprehension of a serious backlash from the tribesmen and widespread tribal wars.

The latest events in the two Waziristans seem to be driven by the same approach.  Strictly speaking, assimilation is not the stated reason for military action in this area.  However the development activity undertaken in FATA, through international and internal resources is clearly indicative that the medium and long term objectives remain to be assimilation.

The Political/Developmental Approach
In contrast to the coercive approach, the supporters of the political approach were more inclined towards a political solution including withdrawal of garrison at Razmak.  

The Howell Committee recommendations placed greater emphasis on the implementation of the 1922 policy through development initiatives.  Practically, however, when state intervention in the social sectors particularly in health and education sector was expanding everywhere else in India including the Frontier Province, very little attention was given to the tribal areas.

This period also witnessed the engendering of two great debates involving the tribal areas.  The first one focused on the best boundary for British India whereas the second, a direct corollary of the first, was regarding effective controls over the border tribes.  The latter debate turned into an argument over the strengths and weaknesses of the Sandeman model versus the Frontier School.  While the first debate is not germane to the scope of this paper, discussion on the second debate, which formed the basis of the `Forward Policy’, is in order.

Post Partition Matters
The question of assimilation of the Federally Administered Tribal Area into the national mainstream has been in the attention of the policy makers since independence.  The latest events in Wana have added a sense of urgency to refocus on the matter.  The Post 9/11 developments in Afghanistan and our national interests in the region are also likely to impinge on this matter, being symbiotically related.  The debate on the matter has therefore raised profound questions regarding the desirability of special dispensation in terms of governance of these areas, resulting in conflicting images on the ultimate route towards assimilation.  These have been discussed in the following sections.

Legal Aspects
Ever since the inception of Pakistan, the Federally Administered Tribal Areas have been governed under a special dispensation enshrined in the Constitution of the Islamic Republic of Pakistan19.  This dispensation is a carry over or continuation of the method of governance adopted by the British during the Raj.  The British viewed the governance of the area as a costly yet necessary exercise because of their geo-strategic perceptions viz a viz the Tsarist and later the communist Russia “as they rivaled each other in a great game of diplomacy and intrigue”.

Integration has certain implications that may impinge upon the Constitution, and may require amendments and changes therein.  Detailed examination of this legal aspect must be made prior to embarkation on this route given that the limitation the provisions of Article 247 places on the prerogatives of the Government in respect of a change in the status of the FATA.  It would be thus very important that this point is carefully considered and  consensus developed on.

The preceding brief examination of the legal questions involved indicates quite vividly the complexities involved.  The next part of the discussion deals with the assimilation process and its modalities.  These should be read with the above difficulties and complexity in perspective.

 

Conclusions and Recommendations
Discussion on the emergence and functioning of various types of tribal policies and their geopolitical context was important to comprehend the nature of the problem. From all accounts, it becomes evident that the military approach is not an answer to the tribal problem. Especially in view of its geographical location and because of the Durand Line, which suffers from many ethnical absurdities!

The present border alignment is novel for its being inhabited by the same tribes on both sides; Wazirs, Mangals, Gurbaz, Maqbals, Para Chamkanis, Shinwaris, Mohmands, Safis, Tarkalams and Mushwani are note worthy.  The agreement allows same tribes living on either side of the border free and unhindered ingress into one another’s quarters that gives an added sensitivity to the border. 

The discussion also noted that the policy that the Government of Pakistan had been pursuing in the tribal areas before the communist takeover and subsequent civil war in that country was perhaps geared to retaining the status quo.  The policy was also aimed to counter Afghan intrigue and influence peddling in its own backyard as well as the failure outline a clearly defined national policy in terms of the objectives that we aspire to achieve in the tribal areas of the Frontier.

This brings into focus the whole debate regarding the problem of the tribal areas and our objective vis-à-vis the assimilation thereof.  What do we hope to achieve in the tribal areas?  Are the tribal areas a problem of national integration with its attendant law and order problems?  On the other hand, is it a strategic or an economic problem?

From the national point of view, the tribal problem would appear to be a combination of all the preceding issues.  The tribal areas, primarily, as had been in the past, are a problem of national security.  For, as long as the tribal areas remain outside the effective control of the government, they are susceptible to intrigue and exploitation, both from external powers and from the disgruntled elements within.  It is therefore essential that the tribal areas be brought under effective control especially when Afghanistan has already done so with its own tribal areas across the Durand Line.

Extension of control over the tribal areas is possible using force but such a course is fraught with extreme dangers.  Such a move would be resisted vehemently through the length and breadth of the region and will have detrimental effect on the objective of assimilation.  Exercising control by force therefore is a route not recommended.  Then what are the other options?

Integration of the tribal areas is perhaps possible through the process of economic and political development.  This does not merely imply the construction of more schools and more veterinary centres and a sporadic electoral activity during elections of the National Assembly but an all encompassing activity that can set the tone and direction of a clearly defined objective. 

To begin with, assimilation is difficult to attain without first breaking the tribal way of living. This as stated before, breeds narrow parochialism and xenophobia, with limited focus on the interests of the clan and consequently its aversion to any external controls.  In this sense, the biggest obstacle impeding assimilation is tribalism itself.  It is, therefore, “not economic development per se” wherein lies the solution to the problem, but a development intervention which helps engendering progress from tribalism to feudalism.21

The settled districts of the Frontier Province offer a perfect analogy of what such development initiatives can help attain.  The development of irrigated agriculture in these districts by the British was not carried out with the intent to maximize revenues but as a means of achieving greater control over a people who were no less tribal in disposition than the hill tribes.  Consequently, by the turn of the 20th century the British had not just succeeded in taking the sting out of the resistance of the refractory tribes dwelling in the plains but were exercising greater control.

A similar principle is in evidence in the tribal areas of Pakistan today.  Tribes, which have lands or stakes in business in the settled areas, are more amenable to controls.  Even the Wazir and the Mehsuds, the most recalcitrant of the Frontier tribes, settled on the lands in Dera Ismail Khan and in Bannu have become more tractable and adjusting well to feudal relationship based on individual ownership of land.

It stands to reason, that if the objective of bringing these areas into the national fold has to be accomplished without resorting to the use of coercive means.  The transformation of the tribal society into a feudal one would have to be encouraged through deliberate and well-calibrated interventions.  It would mean that instead of thin spreading of resources on all sectors of development, emphasis on irrigated agriculture would better serve the purpose.  Such an undertaking would not only settle the tribal people but would also change their social settling.

Areas like Spin and Wana plains in South Waziristan, the `Sahra’ in upper Kurram and the Safi plains in Mohmand Agency can be irrigated through perennial schemes.  Similarly, completion of Projects like the Kurram Tangi Dam, Gomal Dam, Tank Dam, Munda Dam and other irrigation schemes such as on Kaitu river in North Waziristan hold tremendous prospects for societal transformation and breaking of the stranglehold of the tribal mindset.

Industrialization of the tribal areas is yet another route or remedy proposed by some for a rapid breaking of the tribal barriers and the cause of assimilation.  While there are no two opinions that such development would generate employment opportunities and in turn contribute to extension of influence but the burden of such development and operations thereof would entirely be undertaken by the government that are not sustainable economically.  The advantages of imposed industrialization therefore have to be compared with development of agriculture and in the tribal context; the argument in support of agricultural development far outweighs the benefits of imposed industrialization.

The history of human society and civilization is the history of change from hunting and gathering stage to a more settled form of life with tribalism being one of the earliest forms of human development.  The introduction of adult franchise in 1997 has raised high hopes of bringing about radical changes in the tribal society which may in the short term result in the dismantling of the Maliki System; the bulwark of the tribal administrative structure.  A weakening of the central pillars of the tribal society would surely upset the equilibrium based on territorial responsibility.  This would also have deleterious effects on administrative efficacy for some years to come, but politicization coupled with well considered economic development would act as a catalyst in breaking down the barriers of tribalism.

Concurrently, it is also imperative that the common man in the tribal areas is given a sense of participation in the development and welfare of the area through a system of local self-government.  There is, however, a note of caution that any knee jerk action for introduction of local government system will have exactly the opposite effect for the simple reason that it would set this important vehicle of change on a collision course with the existing instruments of governance.  Unfortunately, such a situation cannot be remedied in the short term.  Rather, the introduction of local self-government should be done in a manner so that change is gradual and is easily absorbed.

While dealing with the epoch making decision of separation of trans-Indus territories of North West Frontier and Cis-Indus areas of Hazara from the Punjab, Sir Olaf Caroe, author of “The Pathans” proceeds to state that in “tribal territory under a vague executive cannot where a foot placed wrong might at any time attract the responsibility not only of the central Government of India but of London itself”, still sets the tone of the administration in FATA and its mode of governance.

The best course would be a policy of integration with special emphasis on extension of control and influence through economic development and the minimum use of force.  Development in the tribal areas, both in economic and political spheres need to be carried out with speed.  These initiatives must not only be visible but also aimed at the target sectors which are crucial to the attainment of the objective especially keeping in mind the huge amount of funds being pumped into the tribal areas these days.  It would also be in the best interests of the tribal areas and from the efficiency criteria, if all development is carried outside the bureaucratic arrangement beset with serious capacity problems.

We have recently made some gains in opening up of the hitherto inaccessible areas in Mohmand, Afridi and Orakzai Tirah, North and South Waziristan. We must not rest on our laurels and allow the initiative to slip from our hands for lack of clarity on our either long-term national objectives or poor choice of personnel.

Finally, yet importantly, the existing administrative structure contrived through an evolutionary process spread over a hundred years is built on tribal equilibrium.  In addition, it is based upon “Nikkat”, concept of tribal territorial responsibility and dispensation of justice in accordance with local traditions and customs.  These systems have been working for generations, only now show decay, and therefore are in need of reform. It is, therefore, imperative that the government draws up an overall tribal plan, with its strategic objectives clearly defined and sequenced.  These objectives need to be Agency or area specific and ought to be followed by realistic developmental initiatives.  The burden of managing these initiatives or targets be assigned to a select group of seasoned but not fossilized or status quo oriented officers, who are known for their commitment and ability to square up to the challenge of the task at hand.