Can the FATA Reforms Break Colonial Legacy?


*Originally published on Tanqeed.

(This article is essentially a watered-down version of a research paper I penned examining the question of how colonial is the post-colonial in terms of the FCR in FATA)

September 05, 2015 — In order to return to their homes from which they were forcibly displaced, the Pakistani government demanded that the people of North Waziristan sign a compulsory and non-negotiable social agreement. That contract demands their allegiance and loyalty to the Pakistani constitution and to the Frontier Crimes Regulations, the colonial era law that is still used to govern the countries Federally Administered Tribal Areas. Most crucially, the agreement entailed that should the tribes fail their responsibilities as categorized in the FCR, they will be subject to severe punishments that include cancellation of their national identity card, passport and other legal documents as well as possible confiscation or razing of their homes. While alarming, the origin of the obligations and punishments in this contract rests in a longer colonial history. In that regard, far from being unusual, it is a window into what has been the normal state of affairs for FATA since at least the British colonial era.

With the FATA reforms process now underway, it is critical to examine the basic logics which have functioned in the governance of this territory. Only by analyzing them can we undo them.

Essential to this analysis is the link between the long history of modern imperialism and Orientalism. As Edward Said expounded, Orientalism is a “a style of thought based upon ontological and epistemological distinction made between “the Orient” and (most of the time) ‘the Occident’.” It constructs an essential difference between the East and the West, and imagines the “Orient” as the absolute Other of the “Occident,” in the process stereotyping the customs and “minds” of the former.

That reasoning is evident in colonial documents. For instance, in his 1933 book, The Martial Races of India, General George MacMunn, a British general classified the Pashtuns as a “martial race” but an “untutored” people leading “a wild life….carrying out a blood feud that has been in progress for generations, ‘an eye for an eye and a tooth for a tooth.” Such writing was not mere description; it could be codified into law. The Criminal Tribes Act of 1871 defined entire tribes as criminal and punished them accordingly on the basis of a racialized and essentialized understanding of criminality. Where “frontier law” was concerned, in particular the Murderous Outrages Regulations that were the forerunner of the FCR, historian Mark Condos writes that, “Arguments for the creation and preservation of…law invariably centred around claims about the purportedly ‘exceptional’ character of frontier governance, particularly the idea that this was a region that existed in a perpetual state of war and crisis.”

Some scholars have also pointed out that, in addition to Orientalist attitudes, the FCR was established in FATA because the British made a cost-benefit analysis. Scholars Sarfaraz Khan and Abdul Hamid Khan note that one of the reasons that the standard legal and administrative system that the British empire sought to institute in the rest of India was not extended to the frontier was “because of its worthlessness in the context of procuring raw material or generating revenue.” Other experts have also pointed out that, at the time, much of that territory was operating at a deficit because of low crop yields and security problems. Instead, the British developed what came to be known as “indirect governance” by co-opting local tribal elders and maliks to collaborate with colonial officials.

Since 1947, there have been a number of amendments made to the FCR most of which have been insignificant in terms of substantial reform. In 1996, the people of FATA were given the right to vote. Since then, the most substantive set of amendments have been the presidential package of 2011 introduced by then president Asif Ali Zardari. It removed women, children below 16, people above 65, and entire tribes, from the clause of collective responsibility, arrest and punishment; provided appeal mechanisms and time frames for the disposal of cases; allowed for inspections of jails, and introduced provisions for bail. The amendment package also introduced checks on the powers of political agents, punishment and compensation for false prosecutions and extended the Political Parties Act 2002 to FATA. For the first time, political parties could operate in FATA.

But despite these amendments, some core issues remain. Article 247 of Pakistan’s constitution, which states that FATA is to be governed by federally, invalidates the application and operation of laws made by the national parliament in FATA, unless the president intervenes and consents. It also removes FATA from the jurisdiction of Pakistani courts. The president is the ultimate authority for the creation of ordinances and the passage for amendments in FATA. Such a set-up essentially excludes FATA from the political, social and economic mainstream of Pakistan.

This system of governance in FATA produced the conditions for the current quagmire. Several analysts have argued that the Pakistani state has kept FATA under the FCR for the purpose of fostering the growth of strategic assets of the state, namely Islamist fighters who can be called upon to do the bidding of the establishment. Additionally, its use as a battleground for policies of “strategic depth”, which aim to diminish Indian influence in Afghanistan, has created an environment suitable for criminals, thieves, smugglers and terrorists.

Since 9/11, FATA has acquired new significance, and the political discourse has further entrenched essentialist ideas about the territory and its people. The place is still treated as “exceptional” and in a “state of war”, which bears a degree of resemblance to the colonial assumption of the frontier belt as a periphery of exceptional circumstances and conditions in need of exceptional legal-political regimes. It is the entrenched interests in FATA that have furthered this view. As Sarfraz Khan and Abdul Hamid Khan write, “those powerful having stakes in status quo, prefer [the] existing arrangement in the name of tribal autonomy and preservation of its culture.” These powerful include the political agents, other bureaucrats appointed in FATA and the maliks, all of whom enjoy a considerable degree of power, status and authority which would be diminished, if not entirely terminated, if the FCR is abolished in FATA in favor of the mainstream constitutional order.

Arshad Afridi, the provincial senior vice president of the Qaumi Watan Party’s youth wing, concurs. “Maliks, MNAs [member of national assembly] and bureaucrats in the FATA Secretariat are the ones propagating that the people of FATA want FCR to be retained because it has empowered them. [The] MNA brings a political agent of their choice and they collectively rule the agency. Maliks are the so-called elders who misuse their power in jirgas.” Afridi also adds that apart from the legal power vested in these groups under the existing framework of the FCR, these people also thrive through the illegal activities available in FATA.

The retention of an anachronistic colonial instrument like the FCR was condemned by the late Chief Justice of the Supreme Court Justice Alvin Robert Cornelius as “obnoxious to all recognised modern principles governing the dispensation of justice”. The people of FATA are still bound by a colonial set of relations, barred from the share of any political, social or economic development and participation in the rest of the country; dehumanized and virtually treated as second-class citizens. And while Pakistan’s use of the FCR may be informed by the post-colonial state’s own dispositions and distinct reasons, in that they differ from the exact imperial calculations of the British in implementing the FCR, but for the people of FATA the post-colonial has only been a continuity of the colonial. It is clear that the FATA reforms will only be successful if they can constitute a break from this lingering colonial continuity and its relics.

– Hafsa Khawaja

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Looking to Turkey


*Originally published in Pakistan Today. Slightly edited version below:

Lenin is reported to have said, There are decades where nothing happens—and there are weeks where decades happen.” 2016 appears to be one of these weeks. Spanning a number of events, from attacks on European soil in Belgium and France, the occurrence of Brexit, to the looming specter of a Trump presidency in the United States, this year has been marked by several waves of shock, and further ripples were added to these when Turkey dramatically foiled a coup attempt on the 15th of July.

A Dark Moment in Turkey

As news of the coup was revealed, Turkish people flooded outside to mount a challenge, in what was perhaps the most remarkable moment of the botched coup.

People poured out on the streets and roads, blocking the way of rolling tanks, pushing them back, protesting, resisting.

More than two hundred and fifty lives were ultimately lost but history is sure to record the bravery of Turkish protesters as an incredible act of tremendous courage, rendered in the name of defending democracy. Around the world, people were watching—some more intently than others.

Pakistan and Turkey both share phases of history deeply pockmarked by a series of coups and military regimes. Any upset in the civilian-military relations in Turkey thus inevitably evokes interest in Pakistan’s political and public sphere. And while one must always tread carefully and cautiously in pulling parallels between peoples, histories, countries, and events, the recent developments in Turkey do offer something for Pakistan to consider.

Turkey, Pakistan, and the Military

Turkey’s main opposition parties, the Kurdish Peoples’ Democratic Party (HDP), the Republican People’s Party (CHP) and the Nationalist Movement Party (M.H.P) have been vehemently critical of President Recep Tayyip Erdogan . Due to the tensions which collapsed the peace process between the AKP government and the Kurdistan Workers’ Party (PKK) in 2015, the relationship in the case of the HDP, whose members Erdogan has previously called to “face prosecution, accusing them of being the PKK’s political wing”, has been even more strained.

Despite these tensions, it is important to note that within hours of news breaking that a coup was being attempted, all three parties strongly denounced the coup and voiced unequivocal support for the democratically-elected government of Erdogan’s Justice and Development Party (AKP).

In contrast to Turkey, Pakistan’s political parties are known to have distributed mithais (sweetmeats)  on the occasion of coups ousting   rivals; a display of petty opportunism at best. Such a political attitude may be attributed to the nature of Pakistan’s political culture which has historically been stunted by decades of military dictatorship and repression; and subsequently disadvantaged by the denial of an uninterrupted, smooth, and gradual . The prospect of gains from collaboration with military governments also propelled this political expediency.  However, this attitude was, appeared for the most part, on the decline following the Charter of Democracy of 2006 which was signed between the late Benazir Bhutto and now-Prime Minister Nawaz Sharif. The CoD formed an alliance between the Pakistan’s People’s Party and Pakistan Muslim League-Nawaz to end General Musharraf’s military regime, and enshrined a collective pledge to the principle of civilian democratic rule and its restoration in Pakistan.

More recently, a maturation of political attitudes was witnessed during Imran Khan and Tahir ul Qadri’s PTI-PAT sit-in of 2014 in the capital.  The public protest was organized by Imran Khan’s Pakistan Tehreek-e-Insaaf and centered on claims of widespread rigging by Nawaz Sharif’s party in the general elections of 2013. The sit-in, which lasted from August 2014 to December 2014, was eventually joined by the Pakistan Awami Tehreek, led by Canada-based Islamic cleric Tahir-ul-Qadri. Together the parties and their gathered supporters exerted pressure upon what they called the “illegitimate” PML-N government, calling for the prime minister’s resignation and fresh polls across the country.

In wake of this sit-in, political temperatures in Pakistan rose alarmingly. However, they ended up fostering a welcome climate of political unity, solidarity, and practicality by bringing together an entire spectrum of parties under the umbrella of protecting Pakistan’s nascent democracy from imminent danger.

Similarly, the galvanization of masses in Turkey against the coup was also an answer to the surreal call given on a mobile-video app by a Facetiming  Erdogan on CNN Turk for the people to take to the  . While large segments of Turkish society mobilized in defense of democracy alone, the public’s support for Erdogan’s AKP – which helped it garner half of the vote in the elections of 2015 – was also clearly significant in terms of the witnessed mobilization.

Little doubt exists about Erdogan’s increasingly autocratic ambitions and his bid for greater power, evidenced by the sharp streaks of authoritarianism he has exhibited without inhibition when “running roughshod over political rivals, tossing enemies into jail and intimidating the media.” His heavy-handed tactics to repress the Taksim Square protests of   also proved to be ample evidence of his shriveling sense of restraint in dealing with opposition. Erdogan’s oppressive and intolerant tendencies have been emboldened after the coup attempt; most sharply demonstrated by the recent purges, which The New York Times aptly characterizes and reveals as being of an “unprecedented scale” and comprising the dismissal of 9,000 police officers, 21,700 officials of the Ministry of Education, the forced resignations of 1,500 university deans, the suspension of 21,000 private school teachers, the detention of 10,012 soldiers and 2,745 members of the judiciary, and the shutdown of more than 100 media outlets.

So, how has Erdogan been able to consolidate power? In part, the AKP government has overseen solid economic and national development in Turkey during its tenure, while positioning itself as the representative of a large constituency in Turkey , comprising Muslims who have long felt ignored and marginalized by the secular elites and the state, and the segments of society which benefitted from the economic policies of the AKP government. But its greatest asset is the same force that allowed the government to resist the coup—the loyalty of the state police and a large contingent of the military.

It is now clear that the loyalty of the state police and a split within the Turkish military itself, with the acting chief of staff Umit Dundar against the audacious initiative to topple the government, also enabled the failure of the coup.

In her interview with Isaac Chotiner of Slate magazine, Professor  Jenny White, of Stockholm University’s Institute for Turkish Studies, spoke about the supremacy of the military at the time of the AKP’s assumption of power in 2003 and the systematic program of defanging it by the government:

“Initially, when Erdogan came to power in 2003, the army was still all-powerful. They still had a position above the government…together with the Gülen Movement, they [the AKP] initiated a series of high-profile court cases against the generals. They put a lot of the high-ranking officers in jail. All of the heads of the different forces eventually resigned. And at that point, Erdogan reached back into the chain of command and promoted someone up. The end result of that was that the military chief of staff was loyal to Erdogan. After that there was no more uppity-ness. They were demoralized.”

Since its creation in 1947, Pakistan has seen three military coups in 1958, 1977 and 1999, and in the sixty-nine years of its existence, it has been subjected to three decades of military regimes. The last of these was headed by General Pervez Musharraf who resigned in 2008 succumbing to immense political and public pressure and protests which grew after his controversial imposition of emergency on 3rd November 2007 and the ensuing measures.

Pakistan has been under two different democratically-elected governments, one after the other, since 2008. Yet even as the popularity of democratically elected governments waxes and wanes, there appears to be no end in sight to the popularity of the military as an institution in Pakistan. The poster-boy for this traditional reverence for the army is the powerful Chief of Army Staff General Raheel Shareef today, who is often the subject of frequent and curious #ThankYouRaheelShareef hashtags and trends on social media which heap appreciation on his efforts against terrorism, and hail him as a  strong and upright general who has nothing but the best interests of Pakistan at heart. And while Nawaz Sharif and his government may have ostensibly survived the political crisis of 2014, posed by the impasse engendered by the Khan-Qadri protest sit-in, most believe the crisis was staging ground for the army to launch a soft coup; as a result of which the government ceded power over main matters of the state, such as foreign policy and security issues, to the army in exchange for the security and stability of their tenure.

In 1995 the late Eqbal Ahmad penned an article titled “The Signals Soldiers Pick”, offering an incisive analysis of the civil-military imbalance in Pakistan and the environments conducive to tilt that in either’s favor which still resonate. He emphasized that the end of military intervention in politics hinges upon the legitimacy of the civilian system of power [being] established over a period of time.” He also stated that, ‘We [Pakistan] have been lacking both the political framework and leaders capable of investing the civilian system of government with authority, and taming the warrior class.’

In comparison to the AKP, it is patent that Pakistan’s democratically elected governments have not only been unable to enjoy hardly any period of uninterrupted power, most of which were cut short by instability and coups, to establish a democratic foothold – it was only in 2013, after 66 years, that the country had its first ever transfer of power from one democratically elected government to another. When in power, they have been beset by charges of corruption and incompetence, and the threats of military intervention have always hung dangerously close to them. Democratic governments in Pakistan have also continually manifested a complete lack of political vision in terms of their quality of performance and governance, which invest the democratic system with credibility, popular support and legitimacy; that firmly confer upon it the empowering authority it often lacks. This is a challenge further compounded by their lack of imagination, will and courage to take on the military and establish ascendancy of the civilian democratic set-up in the Pakistani state’s equilibrium of power.

Evidently, smooth democratic continuity; a solid establishment of government credibility and stability; and the political will and vision to subdue unbridled military encroachments on the domain of state power are pivotal to democratic durability and authority in Pakistan. The road to it, however, remains rocky.

Lessons for Pakistan from Turkey

The failure of the coup in Turkey owes a great deal to democratic fervor. London-based British and Turkish writer and academic Ziya Meral was quick to praise the “many amazing journalists, academics, activists who are fierce critiques of AKP consistently spoke against the coup attempt.” According to Mustafa Akyol, this occurrence underscores “…that Turkish society has internalized electoral democracy, and Turkey’s secularists, despite their objections to the Erdogan government’s Islamism, seek solutions in democratic politics.”

Many Pakistanis took to social media during the coup attempt, praising the perpetrators and encouraging Chief of Army Staff General Raheel Shareef to lead a similar coup. The existence of this pro-military rule sentiment accentuates the flakey faith some segments of Pakistanis feel towards democratic governments, and the persistence of the military’s age-old, and well-crafted, popularity among the people as the “most trust-worthy institution” in the country – as was also revealed by a survey held last year – especially in contrast to political actors and leaders.

In response to a tweet stressing Erdogan’s authoritarianism, Al Jazeera’s Mohammad Alsaafin replied with, “[Erdogan is] not champion of democracy, but democratically elected.” Alsaafin’s comment contains a principal point; that it is essential to protect, improve and strengthen democracy as the institutional framework for the state and its citizens, despite its imperfections and problems.

As Erdogan unleashes his purges and pillory, the impression that he will entirely squander the support and goodwill he has garnered after the attempted coup, rather than use it for a moment of sensible reflection, is increasingly being lent weight. Nevertheless it is evident that unequivocal political support, the support of the masses and the allegiance of state organs to the belief in democratic civilian supremacy are key to a worthy effort and solid fight, if not bulwark, against the audacity of military adventurism. It is also important for Pakistan to understand that democracy means much more than a current government or a certain crop of leaders. To borrow the idea from Mustafa Akyol’s analysis, the solution to democratic problems must be sought in democratic politics.

Turkey may have had more coups than Pakistan, a gulf of different dynamics, and more turbulent experiences to reach this point, but it is never too late for Pakistan to pick a lesson or two from it.

-Hafsa Khawaja