The tribal areas, the FCR and the 2018 merger with Khyber Pakhtunkhwa

At a glance

• Until 2018 the Federally Administered Tribal Areas (FATA) were seven agencies, Bajaur, Orakzai, Mohmand, Khyber, Kurram, North Waziristan and South Waziristan, and six frontier regions beside Peshawar, Kohat, Bannu, Dera Ismail Khan, Lakki Marwat and Tank. [2]

• They were governed under the Frontier Crimes Regulation of 1901 (FCR), which let a political agent act as administrator, magistrate and, through a council of elders he nominated, judge. [1, 2]

• Article 247 of the Constitution kept Parliament's laws and Pakistan's courts out of the tribal areas unless the President consented. [8]

• The Constitution (Twenty-fifth Amendment) Act, 2018 merged FATA into Khyber Pakhtunkhwa. The President signed it on 31 May 2018. [3, 20]

• The Supreme Court struck down the interim regulation that replaced the FCR on 16 January 2019. [20]

• The funds and the legal framework promised for the merged districts have only partly arrived. [27, 29]

The law the tribes lived under

The FCR took its 1901 form from older laws. Waseem Ahmad Shah of Dawn dates the first to the Punjab Frontier Regulation of 1872, modified in 1876, followed by the Punjab Frontier Crimes Regulation of 1887 and a committee of three British officials whose report of 1899 led to the regulation of 1901. [6] The 2016 reform committee's history dates the first version to 1876 and says the revision of 1901 gave administrative officials wide powers, including judicial authority, in the year the North-West Frontier Province was cut out of the Punjab. [1]

The idea at its centre was collective responsibility. Gulman S. Afridi, a retired army officer from the tribal areas, wrote in Dawn in 2012 that it began with a Colonel Coke, in charge of the Afridis of the Kohat Pass, who laid down what to do in a case of trouble: "close the pass at once, seize all Afridis to be found in [the] Peshawar and Kohat districts, sell their cattle, stop all allowances". Afridi adds that Herbert Edwardes, commissioner of Peshawar from 1853, perfected the blockade by barring a whole tribal group from the Peshawar market. [7] The 2016 committee's own history, written for the Pakistani government, calls the persistent criticism of this method "the collective punishment in which many innocents were also punished". [1]

Those who lived under the regulation gave it a name. Bacha Khan, in his autobiography, called it "a brutal and savage Act", adding "we called it the black law". He says it was not a people's jirga that heard a man accused under it: "The British had created their own jirgas, of their own people", and a man could be sentenced to twelve or fourteen years in jail without any right of appeal. Section 40, he wrote, was supposedly about the punishment of crime but the British always used it against political prisoners; he and thousands of his fellow workers were imprisoned under it. [4] On 11 December 1921 he was sentenced to three years' rigorous imprisonment for refusing to give security. [4] His story is told in Bacha Khan and the Khudai Khidmatgar movement.

The committee describes the British aim in its own words: a borderland meant to stop incursions into India from the north-west. It adds that the British declared the tribal areas part of India but not part of British India, which left them, in its words, "condemned to remain an under-developed region" in political growth and human development, and that until 1936 no political reforms were permitted even in the province. [1] The tribal agencies lay along the Durand Line of 1893.

Political agents, maliks and levies

The office of political agent dates from the same period. The agent ran an agency with wide powers and distributed money to secure the loyalty of influential men. [1] Under the maliki system, local chiefs, the maliks, were made intermediaries between the members of a tribe and the colonial authority. [1] The khassadars, a force of tribesmen, were raised after the Third Afghan War and recruited on the recommendation of maliks. The committee also describes the levies as a trained paramilitary force, and both served under the political agent's command. [1]

Pakistan kept the system. The committee records that maliks and lungi holders were chosen by the political agent with the Governor's consent, that they were expected to keep peace and keep the roads open, and that the agent could withdraw the status of one who was not serving the state's interest. [1] Dawn described the khassadar post in 2019 as something of a hereditary right, an asset that could be bought, sold or passed on within a tribe, paid by a stipend given to the tribe. [22] Amnesty International described the political agent in 2010 as holding "ultimate judicial and executive authority". [9]

Two scholars from the Area Study Centre of the University of Peshawar, Sarfraz Khan and Abdul Hamid Khan, wrote that the jirga, "for all practical purposes", had become a tool in the political agent's hands, and that the verdict could be set aside at will by the presiding officer. [5] The jirga described there is not the council in the jirga of the Pashtun villages. It is a council of elders named by an official. The amended text of 2011 says so: the agent nominates the council, records the parties' objections, and either passes a decree in line with the majority's findings or sends the case back. [2]

What 1947 kept

The 2016 committee gives this account of 1947. The tribes joined Pakistan on an understanding that they would keep living by rewaj, custom, as the 1901 regulation incorporated it; at a jirga in Peshawar in 1948 the Quaid-e-Azam agreed to recognise the special status of the tribal areas and make no change in their administration without the tribesmen's consent; and in July 1948 he ordered the creation of the Ministry for SAFRON (States and Frontier Regions) so that the Governor General could manage them directly. [1] The committee also records that in 1945 Dr Khan Sahib told Governor Cunningham that the natural course was for the tribal areas to join the province as one, with jirgas and rewaj recognised as law. [1] (Partition and the 1947 referendum tells the political side.)

The Constitution of 1973 then wrote the arrangement into Article 247. As Dawn put it in 2015, no Act of Parliament applied to FATA unless the President consented, only the President could amend its laws, and the jurisdiction of Pakistan's courts was barred. [8] The Governor of the province acted as the President's agent, and the Chief Minister had no authority in the tribal areas. [1] In a Federal Court judgment of 1954, Sumunder v. State, Justice A. R. Cornelius said the regulation was "obnoxious to all recognised modern principles governing the dispensation of justice". [8]

Reform came in pieces. The committee lists a lost chance in 1955 under One Unit, a committee under Naseerullah Babar in 1976 that would have made FATA part of the province before the elections of 1977, and, in 1996, adult franchise: the people of FATA voted for the National Assembly for the first time in 1997. [1]

Section 21 and the changes of 2011

In August 2011 President Zardari signed the Frontier Crimes (Amendment) Regulation, 2011, and extended the Political Parties Order to the tribal areas, which allowed parties to campaign freely there. [1, 2] Section 21, retitled "Blockade of hostile or unfriendly tribe", still let the political agent order the arrest of "hostile members" of a tribe "wherever they may be", attach their property and bar them from the settled districts. The new proviso said the first action should be taken against the accused's plareena, defined as the male descendants of his paternal grandfather, and only if the circumstances warranted against his sub-section, section or any other section of the tribe, and that women, children under sixteen and persons over sixty-five were not to be arrested. [2] A FATA Tribunal replaced the FCR Tribunal, and the text added time limits for cases and compensation for property taken. [1, 2]

Opinions of the changes split. Sarfraz Khan and Abdul Hamid Khan called them a step forward but wrote that they gave no appeal to the High Court or the Supreme Court; the Tribunal began work on 20 February 2012 and decided 441 cases by August 2013, and the FATA Lawyers Forum objected to a tribunal of non-tribal officials. [5] Gulman S. Afridi wrote in January 2012 that the amendments did not "appreciably change the essence" of the earlier clause. [7] Waseem Ahmad Shah called them mostly cosmetic and argued that they strengthened the political agent's office. [6] Prime Minister Gilani had said in 2008 that his government wanted the FCR repealed. [8]

Operations, displacement and the loss of elders

The committee dates the militant groups in the tribal agencies to the years after 2001 and says security operations from 2004 sent people in large numbers to the settled districts as temporarily dislocated persons. [1] Zarb-e-Azb began in North Waziristan in June 2014 after, in the committee's words, "shifting over a million people to other areas". [1] In June 2010 Amnesty International said that more than a million people displaced from the tribal belt were largely ignored and that at least 1,300 civilians had died in the fighting of 2009. [9] (Waziristan and the Wazir tribe give the places and the people.)

The war also took the old order's men. The committee says the killing of elders and maliks by militants, together with the continued military presence, weakened the traditional governance, and that the exodus and return from Mohmand, Bajaur, Orakzai and South Waziristan between 2009 and 2012 helped raise the demand for reform, and with it a younger tribal leadership. [1]

The Sartaj Aziz committee

The Committee on FATA Reforms was set up in November 2015 under Sartaj Aziz, the government's foreign policy adviser. Its members were the Governor, the SAFRON minister, the law minister, the national security adviser and the SAFRON secretary. [10] I. A. Rehman wrote in Dawn that the report did not name the people consulted, so their representative character could not be judged. [10] Writing in Dawn in 2024, Ghazan Jamal noted that no member of the committee came from the former FATA. [29]

The report records what the committee heard. There was wide agreement on integration with Khyber Pakhtunkhwa, but tribal elders, except in Kurram, Bajaur and the Peshawar frontier region, wanted the special status kept; political parties, youth, businessmen and the educated were clearly for integration; the tribes did not want a separate province, and wanted rewaj and the jirga recognised in any new system. [1]

The committee proposed a five-year transition. The FCR would be repealed and a Tribal Areas Rewaj Act passed; the jirga would be kept, with the judge appointing a council of elders to decide facts; collective responsibility would be omitted so that a person answered for his own acts; the Supreme Court and the Peshawar High Court would gain jurisdiction. [1] It asked for 3 per cent of the divisible pool, Rs 90 billion a year, on top of the existing Rs 21 billion, and 20,000 more levies posts. [1]

The argument over merger

Maulana Fazlur Rehman of the Jamiat Ulema-e-Islam (Fazl) told the National Assembly in October 2017 that the tribal areas could not be merged without a referendum, that no one from them had sat on the reform committee, and that extending the Peshawar High Court's jurisdiction amounted to merger. [11] After meeting a tribal jirga in Peshawar in November 2017 he said the elders had proposed a FATA Supreme Council and that the tribal people had the right to decide their own future. [12]

Mahmood Khan Achakzai of the Pakhtunkhwa Milli Awami Party said at a meeting in Islamabad in October 2017 that no area could be merged with a province "without seeking their permission", and Senator Sardar Mohammad Azam Khan Musakhel demanded a referendum in Fata. [13] In 2025 Achakzai told the newly formed FATA Loya Jirga that the merger was unconstitutional and made without the consent of the tribal people. [30]

The Awami National Party, in the words of its Balochistan president Asghar Khan Achakzai, called the passage of the bill "Bacha Khan's dream" and a milestone, and said his party had tabled a resolution for the merger in the provincial assembly in the 1990s. [16] Imran Khan told the National Assembly the tribal people wanted immediate justice, as under the system in Khyber Pakhtunkhwa. [14] Nineteen FATA parliamentarians had presented a bill for integration in September 2015. [1]

May 2018

The federal cabinet decided on 22 May 2018 to prepare one bill to merge the provincially administered tribal areas with their provinces and FATA with Khyber Pakhtunkhwa. [3] The National Assembly passed it on 24 May by 229 votes to one, with the JUI-F and PkMAP walking out. [14] The Senate passed it on 25 May by 71 votes to 5; the only votes against were PkMAP's, and JUI-F's senators walked out again. Senator Abdul Ghafoor Haideri of the JUI-F said before leaving that the status of FATA was being changed without the consent of its people. [15] On 27 May the Khyber Pakhtunkhwa Assembly passed it with 92 of its 124 members voting in favour; JUI-F's seven members voted against, and its workers tried to scale the Assembly's wall. [17] Chief Minister Pervez Khattak said: "No despotic ruler can do to its people what has happened with the people of tribal areas during the last 100 years." [17]

The Act amended Article 246 so that the tribal areas it listed "shall stand merged" in Khyber Pakhtunkhwa, with the areas in one of its other paragraphs merged into Balochistan, and omitted Article 247. [3] Provincial assembly seats for the new districts, 16 general, four for women and one for non-Muslims, were to be filled within a year of the 2018 general elections; the National Assembly's seats fell from 342 to 336 and the Senate's from 104 to 96. [3, 17] The merged territory covered 27,220 square kilometres. [17] The President signed the Act on 31 May. [20]

The interim law and the courts

The President promulgated the FATA Interim Governance Regulation, 2018 on 25 May, the day the Senate voted, and it was notified on 29 May. [19] It repealed the FCR, called the agencies districts and renamed the political agents deputy commissioners. It kept councils of elders for civil and criminal cases, with an appeal to the commissioner and then to the Peshawar High Court. [18] Shah wrote that several provisions of the repealed law had been carried into it. [6]

The Peshawar High Court held on 30 October 2018 that the regulation's judicial powers for executive officers conflicted with the Constitution, and gave the governments 30 days to make other arrangements. [19, 20] On 16 January 2019 the Supreme Court dismissed the provincial government's appeal and declared the whole regulation unconstitutional: "After the 25th Amendment, all the residents of the Province of KPK are similarly placed, there is no rational basis on which the people of FATA can be distinguished from the people of the rest of the province of KPK". [20] The provincial government passed continuation Acts that kept the old laws, including the Action (in Aid of Civil Power) Regulation of 2011, and on 17 October 2019 the High Court declared the Acts and the internment centres unconstitutional. [20]

The vote of July 2019

Dawn called the provincial assembly elections held in the seven districts in July 2019 "historic". Independents won six of the 16 general seats, the PTI five, the JUI-F three, and the ANP and Jamaat-e-Islami one each. Turnout was 26.22 per cent of 2.81 million voters. An independent linked to the Pashtun Tahafuz Movement, Mir Kalam Khan, won in North Waziristan, and another independent associated with the movement, Mohammad Arif, lost to the PTI's candidate in South Waziristan by 10,272 votes to 11,114. [21] (See the Pashtun Tahafuz Movement.)

What has changed and what has not

Police. Khyber Pakhtunkhwa announced in April 2019 that 16,053 khassadars and 11,918 levies would join the provincial police. [22] By February 2020 notifications had merged 4,517 of them in Bajaur, Orakzai, Darra Adamkhel and Bittani, while the men told the police chief they had yet to get the incentives of regular police. [23]

Courts and the jirga. A National Assembly committee was told in 2025 that judicial authority in the districts now rests with the Peshawar High Court. [25] The Alternative Dispute Resolution Act of 2020 was brought into force in six of the seven districts in May 2021, leaving out North Waziristan, and sets up panels of mediators, saliseen, chosen by a committee headed by the divisional commissioner. [24] In July 2025 a National Assembly committee was told that the traditional jirga keeps only cultural significance and has no legal status. [24] That month a federal and provincial meeting pressed for reviving it, and the PTI replied that the question belonged to the provincial government. [26]

Money. In 2022 Dawn's editorial noted that the 3 per cent share was unfulfilled and that Rs 17.1 billion of a pledged Rs 54 billion was delayed. [27] In 2023 Dr Musharraf Rasool Cyan, whom Dawn names as a member of the KP NFC, told a seminar that Rs 3 billion had been released of the Rs 30 billion allocated that year. [28] In May 2025 an adviser to the provincial chief minister said the federal government had withheld funds belonging to the province. [31]

Promises. Ghazan Jamal wrote that the rehabilitation payment for destroyed houses was Rs 400,000 and was ended in 2023, that the Tribal Areas Rewaj Act "never saw the light of day", that there was no sign of the withdrawal of security forces the committee had asked for, and that the districts' seats in the National Assembly fell from 12 to six with the eight Senate seats abolished. [29]