Taming a "Strange Land"

Pakistan's military spokesman Gen. Athar Abbas recently rejected U.S. allegations that some Pakistani security officials tipped off militants about impending raids on their facilities in the Federally Administered Tribal Areas (FATA), allowing them to flee ahead of time. He said, however, that "tribal elders" are sometimes informed about such actions, presumably to win their consent. While unconvincing, this explanation does appeal to standard impressions about the state's tenuous control over a supposedly self-governed tribal belt. But the government's writ in FATA is tenuous by design, benefitting a powerful military and civil bureaucracy rather than tribal communities.

Before the term "FATA" became part of the global vocabulary, Pakistanis commonly referred to this region as Ilaka Ghair, meaning "Strange Land." And strange it is -- not for its people or culture, but for the way it is governed. Pakistan has retained a colonial-era legal and administrative framework, codified in the Frontier Crimes Regulation (FCR) of 1901, to govern the tribal belt. Since Pakistan's independence, FATA -- which comprises seven tribal agencies and six areas known as Frontier Regions -- has been a kind of playground for smugglers and criminals of every stripe. The Pakistani military has also used the strategically located region to promote its perceived interests in Afghanistan through local and Afghan proxies. Now, unsurprisingly, FATA is a haven for a long inventory of local, regional and international jihadi outfits.

Under the FCR and Articles 246 and 247 of the state's constitution, Pakistani laws do not apply to FATA, nor do any other constitutional clauses, including those protecting fundamental rights of speech, assembly, fair trial and dignity. There are no regular police or courts. Acts of parliament are also not applicable unless the president directs otherwise. While the government extended adult franchise to FATA in 1997, elections take place on a non-party basis, and elected parliamentarians effectively cannot legislate for their constituents.

Instead, governance in each agency is overseen by a centrally appointed bureaucrat, the political agent (PA), who enjoys extensive executive, judicial and financial authority, without any credible checks. The FCR empowers him, for example, to imprison for three years a person who has not committed a crime but ostensibly poses a threat of homicide or sedition. They also have the power to punish an entire tribe for crimes committed on its territory through fines, asset seizures, economic blockades and detention of any of the tribe's members. Such actions cannot be appealed in a regular court. In 2004, South Waziristan's administration shut down, and later threatened to demolish, the agency's central marketplace when members of a major tribe failed to capture foreign militants there, leaving many residents without an income.

The PA can also refer cases to tribal jirgas (council of elders), presided by maliks (male elders), who receive financial privileges in return for helping maintain social peace and suppress crime. Jirgas enforce customary law, which is often selective and discriminatory, particularly against women. Their decisions can be appealed to the PA but, again, not to any court of law.

As militancy spread in the region, insurgents murdered hundreds of maliks, attacked or took over jirgas, and intimidated political agents and their assistants. In a few moves, FATA's governance was dismantled. Internationally-funded efforts now to win over FATA residents to the side of the government by bolstering the PA's position, and reinforcing jirgas, are bound to fail, since these unaccountable institutions have themselves bred much public resentment towards the state. Nor are any major development projects likely to be sustained given the absence of regular laws, economic regulations, and the courts to enforce them.  Despite ample natural resources, therefore, FATA will almost certainly remain exceptionally underdeveloped and poor, providing just the breeding ground and space to operate that militant groups need.

The common argument that tribal Pashtuns would resent their "traditions" being breached by the introduction of regular laws and government is impossible to reconcile with the daily misery and risk that the FCR has wrought. In August 2009, President Asif Zardari announced a modest FATA reform package that, while not repealing the FCR, sought to curtail some of its worst provisions, hold the PA more accountable, and lift the ban on political activities. It was widely welcomed across the tribal belt. Almost two years later, these measures have not been implemented, due primarily to resistance from the military and civil bureaucracies that benefit from FATA's antiquated and opaque administrative system.

The FCR was also applied to some parts of Baluchistan, the other province bordering Afghanistan, until a Supreme Court decision in 1993 struck it down. The judges argued that describing a people as "tribal" does not justify denying them the same rights as every other citizen. The FCR's repeal there did not disrupt local traditions, nor lead to chaos. There is no reason we shouldn't follow the decision's logic to FATA.

For all its ostensible "iron hand" value, the FCR could not prevent the explosion of criminality and militancy across the tribal belt. On the contrary, it facilitated the steady degradation of conditions and security in the area. Until this oppressive body of law is repealed and FATA becomes part of Pakistan proper, the people most affected by militancy will remain marginalized, and conflict in a very Strange Land will continue.