*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