FATA-KP merger: panacea for all ailments?

Pakistan government in general and Pakistan Muslim league-Nawaz in particular has achieved a significant achievement when   President Mamnoon Hussain has signed the ‘FATA Interim Governance Regulation, 2018’, paving way for the merger of long-ignored Fata with Khyber Pakhtunkhwa. The regulation is a set of interim rules which apply in the Federally Administered Tribal Areas (FATA) until it merges with Khyber-Pakhtunkhwa within a timeframe of two years.

Earlier, the constitutional amendment bill titled Thirty-First Amendment Act, 2018 was approved by the Khyber Pakhtunkhwa Assembly on May 27, as 92 lawmakers voted in favour while seven MPAs used their votes against the bill. It was already approved from the upper and lower chambers of the Parliament with a landslide majority

In National Assembly 229 lawmakers vote in its favour and only one member voting against it. In Senate, 71 lawmakers voted in favour of the bill while five opposed the constitutional amendment.

Even though the bill had been passed by both houses of the parliament, Article 239(4) of the Constitution says that the president cannot assent a constitutional amendment bill which affects geographical boundaries of a province without approval by the assembly of that province.

Pakistan Peoples Party (PPP), Pakistan Tehreek-e-Insaf (PTI), Awami National Party (ANP), Jamaat-e-Islami (JI), Qaumi Watan Party (QWP) and some other regional parties are in favour of this merger.

Important amendments in Constitution of Pakistan

The bill titled Thirty-First Amendment Act, 2018 seeks six amendments in different articles of the Constitution of Pakistan that include Article 1; 51; 59; 62; 106; 155 and 246.

It removes the word “Federally Administered Tribal Areas,” from the clause-5 under which seats of the national are allocated on population bases.

The bill seeks an amendment to Article 1 of the Constitution, which describes Pakistan’s territory and mentions Fata as a separate entity along with other four provinces.

The bill also seeks to amend Articles 51 and 106, which specify the number of seats allocated to each of the provinces. The strength of the Senate will reduce from 104 to 96 members as Fata will no longer have separate representation, while the seats of National Assembly will reduce from 342 to 326. The KP assembly will now have 145 seats, including 115 general, 26 reserved for women and four for minorities. Fata will have 21 seats in the KP Assembly, including 16 general, four for women and one reserved for non-Muslims.

In article-155, which deals with the complaints and interferences with water supplies it removes the word “Federally Administered Tribal Areas” from its sub-clause-1.

Articles 246 and 247 will be amended ending the control of the president on the Fata region.

The articles-246 which deals with tribal areas, the clause “C” which defines and names the federally administered tribal areas is omitted. Furthermore, a new clause “d” is inserted which states that the laws applicable in these areas will remain applicable until repealed or changed by competent authority. The competent authority as defined under the article-247 will be the federal government but after the elections the assembly will get the jurisdiction of the altering and repealing the laws prevailing in these areas. In the article-272 which defines the constitution of Senate, the bill seeks the omission of the words “Federally Administered Tribal Areas” from its sub-clauses (b) and (f).

What are the FCR’s?

Since Fata would not fall under the jurisdictions of courts, tribal people from across its agencies would be tried under the Frontier Crime Regulations, also known as the Black Law, given to the region by the British government in 1901.

After 1947 partition and British withdrawal from the region, the Fata tribal leaders opted to join Pakistan but insisted to follow the same old Jirga system which is now considered outdated. The Constitution of Pakistan administered Fata through the same rules introduced by the British in 1901 known as Frontier Crimes Regulations (FCR). All civil and criminal cases in Fata were decided by a jirga (council of elders) as the tribes regulate their own affairs based on customary rules and unwritten codes. The main purpose of FCR was to protest the interests of the British rulers and counter the opposition of Pashtuns to their rule, especially in KP what was then North-West Frontier Province and Balochistan and their adjoining tribal areas.

All these years, people of Fata remained neglected as Pakistan’s mainland laws and judicial system did not apply in the region constitutionally. FCR outright deprives tribespeople from approaching the formal courts as it states that appeal, wakeel (lawyer) and daleel (evidence) are not applicable for its residents. The other worst aspect of the Black Law is its collective responsibility clause, which is imposed on anyone in the tribal areas for a crime committed by his or her relative or anyone in from the same tribe.

Procedure

The situation warrants a phased transition to be completed by 2021. First, six Frontier Regions are to be notified as parts of adjoining settled districts. Second, Bajaur, Khyber and Kurram are to be integrated in KP. Third, Orakzai and Mohmand, and in the fourth phase South and North Waziristan are to be settled.

Strategic importance of FATA

The geographical area in which FATA exists has been a very important place in strategic terms. The Federally Administered Tribal Areas represent the gateway to the plains of the subcontinent through seven passes: Bajaur, Dir, Khyber, Mohmand, Peiwar Kotal in Kurram Agency, the Bolan Pass and Gomal in South Waziristan.

In the known historical period, it has been the main route of attacks on India.  From the great fear of Russian invasion on British India to the mujahedeen war of Afghanistan and now Pakistan’s export of terrorism in its neighboring countries such as India and Afghanistan, this region has played an important role.

Protest against this exercise!

The Jamiat Ulema-i-Islam-Fazl (JUI-F) and Pakhtunkhwa Milli Awami Party (PkMAP) has been opposing the bill and demanding a referendum to seek assent of tribal people before Fata’s merger with KP.

PkMAP regretted that in the past Fata was used as a base camp for the war in Afghanistan, adding that the people of Fata hated terrorism and the terrorists in the area had arrived from outside. PkMAP is of the view that FATA is a buffer zone between Pakistan and Afghanistan. So Afghanistan’s consent is mandatory to ensure a peaceful transformation of the tribal region.

Before staging the walkout, JUI-F Senator Maulana Abdul Ghafoor Haideri objected that the status of Fata was being changed without seeking consent of the people of Fata.

Afghanistan’s stance!

Afghanistan’s President Ashraf Ghani’s office on May 26 objected to the Pakistan’s decision of KP-FATA merger, saying “the decision was against the 1921 agreement between the British India and Afghanistan”. The statement said Pakistani parliament had taken the decision of the merger at a time when the “military was governing” the areas.

However, between all these exercises the development of FATA and eradication of the FCR was the core issue.  But even more retrogressive laws are still in force in Pakistan even in Khyber Pakhtunkhwa. But There is not a single word or discussion on that issues. .  The chief minister of Khyber Pakhtunkhwa made it clear that Shariah Nizam-e-Adl Regulation (SNAR) would not be touched under the bill. The Nizam-e-Adl Regulation was a controversial act, passed on April 13, 2009, of Pakistan's central government that formally established Sharia law in the Malakand division.

Underdevelopment and terrorism in Fata is the result of Pakistan's enduring policies to sabotage the peace and security in whole region and this type of gerrymandering will do nothing in present or in future.