While Islamabad continues to debate whether it should preserve the jirga system, the movement in the tribal areas to live under the same laws as the rest of Pakistan is moving forward.
UMAR FAROOQ — On June 28, Naghma, a 13-year-old girl living in Pakistan’s Federally Administered Tribal Areas, was taken by her uncle and five other relatives to an empty room in a house nearby and shot five times with an AK-47. She had apparently brought shame to the family by trying to run away with a young man from her neighborhood and one of his friends. Although her murder was but one of the thousands of “honor killings” that occur in Pakistan each year, it was different in one sense: it was technically legal.
Pakistan criminalized honor killings in 2016, making them punishable by mandatory life sentence. But the Federally Administered Tribal Areas (FATA)—a 10,500-square-mile strip of land wedged between Afghanistan and the Pakistani province of Khyber Pakhtunkhwa—is governed not by Pakistani law but a century-old set of regulations that leaves the enforcement of law and order to locals.
The result is that for centuries, the tribal areas were lawless, run not by a government but by a romanticized system of tribal customs dubbed Pakhtunwali. Pakhtunwali is what was used to explain the Afghan Taliban’s decision not to hand over Osama bin Laden after 9/11; even a mortal enemy is to be kept safe if they show up at your doorstep, the custom ostensibly dictates.
But 16 years of war have torn apart the old social fabric in FATA. Thousands of tribal elders, who have traditionally overseen life in FATA, have been killed in the conflict between the Taliban and al Qaeda fighters and the Pakistani state, and thousands more have been forced to flee for their lives. More than three million have been displaced from FATA, and the tribesmen and women no longer want nor understand Pakhtunwali.
What has enabled Pakhtunwali to flourish is a 1901 law called the Frontiers Crimes Regulations (FCR) that governs FATA. Its original title, when enacted by British colonial officers, was the “Frontier Murderous Outrages Regulations.” Tribal elders and the tribesmen that the English claimed they represented were collectively responsible for any offense against British India. If, say, a tribesman ambushed a British colonial servant on a British colonial road and absconded into the wilderness beyond the control of government troops, an official called a political agent would summon the tribe’s elders and demand they find and turn in the brigand. To ensure compliance, the FCR allowed the political agent to blockade the tribes, bar members from traveling to Peshawar for trade, hold tribesmen hostage, or raze villages until the fugitive was produced.
The idea was to let the tribesmen, aside from any such offense against the British, largely govern themselves. Everything from deciding how to distribute collectively owned land to what to do with an eloping couple was to be decided upon by a jirga, or tribal council.
The FCR was kept in place after Pakistan’s independence from the United Kingdom in 1947, during which the British colonial officers who had the power to impose collective punishment were replaced with Pakistani civil servants, often from outside the tribal areas, who continue to hold the romanticized view that locals would never accept the laws imposed in the rest of the country.
Today, Pakistan’s constitution explicitly bars Parliament and the judiciary from having any jurisdiction there, and only the president has the authority to decide where and how any given law is applied in the tribal areas.
The only reforms to the FCR in more than a century took place in 2011, when Pakistan began allowing political parties to operate in the region and introduced changes aimed at upholding human rights. Whipping could no longer be a prescribed sentence, and only men between 16 and 60 years old could be arrested for cases of collective responsibility. A new appellate body consisting of three senior civil servants, the FATA Tribunal, was established, where defendants could lodge an appeal within 90 days of a sentence from a political agent. The tribunal also received a mandate to inspect jails in the tribal areas twice a year. But none of those reforms have been implemented. The tribunal, for instance, cannot even give an accurate count of how many people are held in FATA prisons.
Around 200,000 soldiers are now stationed in FATA, an effort by Pakistan to hold regions that were cleared out after scores of military operations carried out there since 2001. Their presence is largely welcomed by locals, who have spent more than a decade watching helplessly as government forces played a cat-and-mouse game with thousands of Taliban and al Qaeda militants. The military had first tried making peace deals with the jihadists, enlisting tribal elders to sign agreements that they would root out the heavily armed Arabs and Central Asians living among them. But since they were outgunned, locals inevitably found themselves being collectively punished when the deals fell through.
Every IED blast or ambush on soldiers cost the tribesmen dearly, for example. Tens of thousands of homes along with once-bustling bazaars were razed and tribes with hundreds of thousands of members were blockaded or exiled for years. Thousands of tribesmen were arrested by political agents in attempts to punish the tribesmen for failing to uphold their end of an impossible deal. Suicide bombers struck jirgas, as did U.S. drones. In all, at least 1,100 tribal elders were killed in the war.
The majority of FATA’s population are too young to sit in jirgas and have watched the war lay bare the flaws of Pakhtunwali with which they had grown up.
“The youth are against the formal jirga institution in FATA, and they are equally against their elders,” said Naveed Ahmad Shinwari, who heads the Community Appraisal and Motivation Program, an NGO that tracks social change in the tribal areas. “They are not against all the elders, but the young generation understands the elders to be part of the problem. They have, in a way, revolted against them.”
The rebellion stems in part from a cultural awareness among young people from FATA—a realization that even if they themselves are ready to move past antiquated notions of tribal loyalty, the rest of Pakistan seems stuck.
“Before the war, in the settled areas, we used to get people asking if we are from Afghanistan,” said Samreena Khan Wazir, who grew up in South Waziristan but now works in Islamabad and is one of only a handful of female lawyers from the tribal areas. “They wouldn’t know Waziristan was in Pakistan. Then after 9/11, we just got a bad reputation. We never had a chance to show any positive image of ourselves.”
Pakistanis outside the tribal areas, from the general public to the military, still refer to colonial British accounts of life in FATA, said Wazir—accounts that leave little room for recognizing individuality and instead make a person’s tribal affiliation their most important characteristic. “We are still valued based on whether we are treacherous, or brave, or hospitable, or honorable,” she said.
There are practical reasons for discarding the old ways as well. During the war, entire families within FATA were displaced, creating a host of unique problems for women. Literacy rates in FATA, especially among women, are far lower than in the rest of the country, with some surveys estimating that as little as three percent of women can read and write.
“The most suffering in this war on terror was borne by women and children,” said Wazir. “The women didn’t even know how to find their way on the road, how to read signs, how to find where rations were distributed.”
The very act of living in close proximity to strangers, whether in a rented apartment in a city or a tent in a camp for the displaced, has sparked a change in what is considered acceptable behavior for women.
Displaced tribal women have held their own jirgas in cities such as Peshawar and Nowshera, as well as inside FATA in villages controlled by the Taliban. They have led protests calling for the reopening of schools closed during the conflict and for ending the FCR.
“They didn’t know what the constitution is, what so-and-so document says, but they know the difference between what life is like for women in Islamabad and what they are going through in FATA,” said Wazir, who in 2015 led a protest against the FCR in the city of Wana. The event drew hundreds of women.
“After displacement, women have seen the settled areas,” said Wazir. “They have seen other women who wear the burka but take their kids to school themselves, or to the market, and they are honorable women, and they are seen as honorable by others.”
Another significant change in FATA is that over the last two decades, interest in the ongoing conflict has spurred the rise of local journalism. Hundreds of journalists now report from the region, even at the risk of being imprisoned by local political agents or being targeted for killing by militants or other tribesmen.
Coverage given to crimes like Naghma’s murder, for instance, and the fact that her killers had not been punished, have outraged the public. Media coverage of her death compelled federal authorities to step in. This led to the arrest of Naghma’s uncle as well as two tribal elders who condoned her murder and the local official who had initially discovered the girl with her male companions and returned her to her relatives knowing full well she would be killed.
Cases like Naghma’s should be a lesson for why the FCR needs to be lifted, said Wazir. “It’s the same idea of ‘honor’ that kills women in the settled areas and in FATA,” she explained. “But in the settled areas, there’s a procedure you can use to punish the criminal. In FATA, whether or not such a crime is punished is entirely up to the political agent.”
Thousands of other activists have held protests both inside and outside FATA calling for the lifting of the FCR, and lawmakers from every major political party have pledged their support. After fighting a years-long war in the tribal areas against the Taliban and other jihadist groups, Pakistan’s military has also thrown its weight behind modernizing the tribal areas. “If there was a regular law here, instead of the FCR, of course we would not have this problem,” said a senior commanding officer of the Pakistani Army’s 7th Division, which is tasked with securing the particularly troublesome area of North Waziristan. “Settled areas have police, judges, schools, institutions to make sure it is absolutely difficult for militants.” Having secured the region through force, the military now believes it is time to ensure that peace remains by bringing the rule of law to the tribal areas.
A December 2016 survey by the Islamabad-based FATA Research Center found that 70 percent of people thought the FCR was the root cause of their problems and 95 percent said the region needed to be granted fundamental human rights, echoing the findings of a cabinet-level committee created by former Pakistani Prime Minister Nawaz Sharif. This March, after months of meetings with stakeholders in FATA, the committee proposed legislation for gradually lifting the FCR and incorporating the tribal areas into the rest of the country, saying the steps were crucial to the future security and stability of Pakistan and the region. But this May, when it came time to vote on the changes, the government shocked activists by announcing it would postpone the process.
Part of the problem with reforms is cost. Currently, about $78 per person is allocated from Pakistan’s budget for the tribal areas, compared with $200 per person in the rest of the country. The government would thus have to increase its per capita spending in FATA. What’s more, much of the allocated funds are lost to corrupt officials, from political agents to rank-and-file security forces extorting money along FATA’s roads.
But Pakistani officials continue to claim that some in FATA do not want to lift the FCR. “Change is a must and the status quo has to end,” Prime Minister Shahid Khaqan Abbasi told tribal leaders this August. But “constructive change” in FATA, he added, would only be completed after further “consultation with all stakeholders.”
The “stakeholders” Abbasi referred to are two lawmakers who do not even live in FATA: Mahmoud Khan Achakzai, from the city of Quetta, who heads his own small Pashtun nationalist party, and Maulana Fazlur Rehman, an ultraconservative who runs hundreds of seminaries in the tribal areas. Rehman has openly called for the support of the Taliban in Afghanistan, and after 9/11, many of his seminaries in FATA closed to allow students to join the jihad there against the United States.
“The people calling for reforms want to take jihad out of our culture,” Rehman told an audience of hundreds of activists, tribal elders, and lawmakers who had gathered at a conference this September in Islamabad to discuss the modernization of the tribal areas. To Rehman, the fact that the tribal areas were largely ungoverned was a blessing, as it enabled Muslims to live according to what Islam had intended for them. “The real problem is they want to extend thousands of British laws [currently enforced in the rest of the country] to FATA, in exchange for the FCR,” he told a silent crowd in his characteristically paternal tone. “But we want to end those same laws in Pakistan today…Why, instead of lifting them in Pakistan, would you impose them on the tribal people?”
Insisting that FATA’s residents prefer Pakhtunwali over Pakistani law, Achakzai and Rehman have pushed for the enactment of the Riwaj Act, a new law that would, in the event of reform in FATA, keep in place an as-yet-undefined set of customs in the tribal areas. The prosecution of any criminal or civil cases in the tribal areas would be subject to the discretion of tribal elders, who would determine whether any action was needed in accordance with their customs.
“Our riwaj allows you to kidnap someone, allows you to carry on blood feuds, allows you to sell women, to kill them,” said Wazir. “That’s our riwaj, and now it will be overseen by the state.”
Achakzai and Rehman, in effect, have provided an excuse for Pakistan to ignore the broad consensus for reforms, becoming stakeholders in the future of a region they have lost touch with.
While Islamabad continues to debate whether it should preserve the jirga system, the movement in the tribal areas to live under the same laws as the rest of Pakistan is moving forward. Activists and tribal elders are threatening to begin a campaign of mass civil disobedience in major cities if the reforms are not implemented.
“Things won’t work in the old way anymore,” Wazir said. “War teaches you a lot.”
(The article also appeared in the Foreign Affairs magazine)