In 2013 my edited volume The Frontier Crimes Regulation: A History in Documents (OUP) was published. It collected and discussed nineteenth century British colonial correspondence, official documents, and reports related to a many-year process of revising the Punjab Frontier Regulations that dated to the 1870s. Amendments to resolve an apparent continued wave of crime and social violence led first to the “Punjab Frontier Crimes Regulation, 1887” and then, after more debate and revisions, “The Punjab Frontier Crimes Regulation, 1887 (As Amended By the Committee)”, printed in Lahore in 1900. When Curzon created the North-West Frontier Province in 1901 from Punjab districts, this version became the well-known NWFP FCR, 1901 mentioned in many references.
The FCR was used by colonial officials as a legal basis to assert political authority over the Peshawar area and border communities that the British were unable to fully control or incorporate into an established British Indian judicial structure of courts, penal codes, lawyers, evidence, testimony, convictions, and appeals. Language and cultural differences meant British officials could never collect proper evidence or testimony. Pukhtuns and non-Pukhtuns failed to end the use of traditional methods of dispute and conflict resolution (whether it might be called custom, riwaj, Pukhtunwali, or Sharia). Over time residents of Tribal Agencies, the eventual Federally Administered Tribal Areas (Fata), became the special targets of this authoritarian method of obtaining convictions for actions determined by the British to be acts of criminal behaviour (homicide, theft, anti-state acts) as well as social violence (conflicts over inheritance, women, or rivalries, called “blood feuds”).
TE Shaw (Lawrence of Arabia) (third from left) while serving with the RAF at Miranshah Fort, Waziristan, Fata in 1928. The British used the FCR laws from 1901 onwards to establish their authority over Fata - Credit: Imperial War Museum
Though in 1947, M. A. Jinnah, welcomed Tribal Agency residents as full citizens of Pakistan and withdrew troops from forward regional bases, the traumas of 1947-48 involving the resettlement of millions, the conflict in Kashmir, and the setting up of a new administration, meant that any intended political, economic, or development plans for the areas remained unfulfilled
Colonial administrators incorporated in the FCR now familiar punishments of a dominant, indiscriminate imperial rule: collective punishment, blockades of whole communities (“tribes”), individual exile, the ability to destroy homes and other structures, demands for bonds for good behaviour, the award of three-year imprisonment for failure to post adequate security, convictions after investigation by an official “jirga” of members appointed by colonial agents, and the ability for colonial allies, including selected dependents, subsidized Maliks, to “cause the death of” anyone suspected of a breach of the rules.
Though in 1947, M. A. Jinnah, welcomed Tribal Agency residents as full citizens of Pakistan and withdrew troops from forward regional bases, the traumas of 1947-48 involving the resettlement of millions, the conflict in Kashmir, and the setting up of a new administration, meant that any intended political, economic, or development plans for the areas remained unfulfilled. As the historian Ayesha Jalal has written, the new state of Pakistan inherited certain colonial legacies that have characterized Pakistan’s history since 1947. Political leadership remained tightly held at the Centre. Strong bureaucratic, administrative, and security structures often overshadowed the judiciary. All this delayed the development of political parties and the evolution of a fully representative postcolonial parliamentary system with devolved layers of provincial and local authority.
Because Fata is not included in the NFC divisible pool, its residents have, in the first five years of the current decade (2010-11 through 2014-15), "an almost average per capita shortfall of 44.39%" in budget allocations
Over the decades since 1947, such centralized authority found value in maintaining the status of a separate space called Fata under a unique set of rules called the FCR. Fata is not administered by the Khyber-Pakhtunkhwa provincial government. The KP governor has authority there as the representative of the president of Pakistan. At the federal level, some issues are dealt with by the Ministry of States and Frontiers, reporting to the prime minister and parliament. The Fata Secretariat, under an additional chief secretary (Fata) who answers to the governor through the KP chief secretary, and the Fata Development Authority, both established in 2006, became additional administrative layers responsible for the development of Fata.
Since 1947, political reform was delayed and only partially implemented. The current “Report of the Committee on Fata Reforms, 2016”, completed in August and available online, discusses this history and is now at the centre of discussion as the recommendations of the report are available for consideration by the cabinet, the prime minister, and the president. The report says, on page 18, that it is the president, who under Article 247 (vi) of the Constitution, “may at any time direct that the whole or any part of the Tribal Area shall cease to be tribal area, provided that before making any order under the clause, the President shall ascertain the views of the people of the Tribal Areas concerned, as represented in Tribal Jirga”.
Written by men with long years in government service, the report recommends a five-year process of the merger of Fata into KP
The economic and development argument for reform in Fata is quantifiable. The reform report notes that because Fata is not included in the National Finance Commission divisible pool, Fata residents have, in the first five years of the current decade (2010-11 through 2014-15), “an almost average per capita shortfall of 44.39%” in budget allocations. The social argument has been made for the need for more and better schools, medical care, and transport networks. But for the decades since the late 1970s, political turmoil in Afghanistan and Fata has raised “security” issues that have placed strategic national and border concerns at the forefront of much informed discussion, with Fata political reforms being neglected or specifically seen as needing to be delayed until later. Events of violence in the last weeks of February 2017 again find security and border control as primary subjects of official and media concern.
In the eighty-one page Reform Report, dimensions of all these issues are raised and discussed. Written by men with long years in government service, the report recommends a five-year process of the merger of Fata into KP, with Article 247 of the Constitution remaining unchanged in this time. Local bodies elections are called for. A three percent allocation of the divisible pool is recommended. A whole last section, details a full outline of administrative management of political integration, reconstruction, development, and security reforms. Economic stability and reform is to include such innovations as land settlement and property records, “using modern technology to create GIS-based computerized individual record of rights as adopted by Punjab”.
The debate over reforms has peaked. It has included “security” questions, and questions over choices of a separate province, a merger, or keeping the status quo. Should there be a referendum? The report writers document their extensive “Consultations with Stakeholders”, though inevitably their recommendations come from the top down and repurpose rather reduce the current administrative structures. Political agents and other interested parties have not been threatened by the recommendations. Aspects of the FCR will be retained, including a “Riwaj” element. Nevertheless, recommended changes will have effects over time.
Former administrators with decades of experience have offered varied opinions on political reform. Khalid Aziz, a former chief secretary of NWFP/KP, has written on his blog against the FCR. Rustam Shah Mohmand, a former chief secretary has written a February 16 op-ed piece, urging caution and warning of the “unanticipated perils” of a merger. Pervez Tahir wrote in an op-ed on February 24 that “Political integration should happen politically, not through transitional packages.” He remarks one could simply change the Constitution, merge Fata into KP and let the provincial government manage the politics of transition.
Despite the report’s limitations or compromises, or perhaps because of such limitations and compromises, it may well be adopted in part or whole. One might observe that it is a unique moment for political change. The report details the already achieved reforms of individual voting and political party rights and the 2011 reforms that reduced the bounds of collective punishments. It also mentions the July 2013 Political Parties Joint Committee on Fata Reforms consensus by ten political parties that agreed on eleven reforms that include amending Article 247, local bodies elections, a full development plan, and separation of executive and judicial powers in Fata. In 2017 almost all political parties now support reforms.
The report discusses the relevant issues. It offers a merger recommendation through a process that respects only too well the current power structures operating in Fata and along the border. Security concerns will have their place in discussions and may well delay or subordinate implementation of political reform. Also, in Pakistan, previous political reform and devolution efforts have failed because financial resources continued to be managed from the Centre. The role of the military, especially now that it directly controls so much of Fata, receives limited comment in the report, but it is noted that without political reform, what inclusive, legitimate political system would be in place after a military departure?
To take a broader perspective, beyond Fata, one might argue that peace in Afghanistan may only come with peace in Fata. Arguably, after decades of placing security interests before reform, in fact, peace in Fata may only be secured with political reforms. They would create government legitimacy and integrate all residents of Fata as full citizens into the nation-state with complete judicial and civil rights protections under the Constitution. Decades of turmoil will not end with a merger or the passing of a reform and development package. All the problems faced by every Pakistani will still need to be faced by Fata residents. Many already face such problems in daily lives already well connected to the rest of Pakistan. Though change in Pakistan has often been partial, incremental, delayed, and compromised, still one should not be surprised if the Reform Report at hand is implemented in some fashion.
The writer is a professor of History at Stockton University, New Jersey.
