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EFSAS Commentary

Merger of FATA into Khyber Pakhtunkhwa: Pakistan snubs Right to Self-Determination


Pakistani President Mamnoon Hussain on 31 May signed the Constitution (Thirty-First) Amendment Bill, 2018, that handed over control of the ‘Federally Administered Tribal Areas (FATA) Interim Governance Regulation, 2018’ to the Khyber Pakhtunkhwa (KPK) provincial government. The Regulation is a set of interim rules applicable to the FATA until it is finally merged with KPK province within two years. The Pakistan National Assembly, Senate and KPK Assembly had passed the amendment bill prior to sending it to the President for formal approval. 

The FATA, a grossly under-developed and poverty-stricken Pashtun-dominated region of Pakistan, has been governed through a totally different, archaic and draconian law than the rest of the country. In 1893, the British colonial regime that ruled India, after a series of wars aimed at extending its control over neighbouring Afghanistan and countering Russian influence there, coerced the Afghan king Abdur Rehman Khan to sign the Durand Line Agreement that stipulated the respective spheres of influence of the two countries. However, the Pashtun tribes that inhabited both sides of the Durand Line launched frequent raids against British India and challenged the authority of the British East India Company. The British responded by introducing the Frontier Crime Regulation (FCR) in what are the present-day FATA, as per which they were legally separated from the rest of British India and their administration was controlled by tribal elders and political agents. While the impression projected was of granting enhanced autonomy to the local tribes, the reality was that legally a council of elders (Jirga) settled disputes in an arbitrary manner wherein basic legal rights of being represented, of presenting evidence, and of appeal were not provided. The British further resorted to appointing political agents (PA) with full powers of appointing their favoured candidates to the Jirga and of reversing decisions taken by the Jirga. Thus, the British effectively excluded the FATA from the rest of India, which also severely impacted its social and economic development. 

These policies steeped in the colonial ethos were in conformity with the vision for FATA that the newly created State of Pakistan had when it came into existence on a purely communal plank in 1947. The founder-leader of Pakistan, Mohammad Ali Jinnah, after launching airstrikes against the region pressurized tribal leaders into signing treaties as per which they would continue to be governed under the FCR. No intent was displayed to integrate the excluded inhabitants of FATA into the Pakistani polity, legal system, economy, or indeed society. The President of Pakistan, much like the British, continued to appoint the PA, who had, and abused, the same despotic powers as the colonial PAs. For over 70 years, this bizarre system was remorselessly persisted with. The vast majority of the country functioned under a specific set of rules, rights and responsibilities while a minority had a totally different colonial-era dispensation and had no say in the country they were citizens of.

The ludicrous political and legal exclusion of the FATA naturally manifested itself in the region being systematically ignored in the spheres of economic development and investments, and the region suffered from horrendous socio-economic malaises. It lagged considerably behind the rest of Pakistan in the indices for healthcare and education, amongst others. The end result of decades of such exclusion is today starkly perceptible – 66% of the population of the FATA lives below the poverty line. This, when seen in conjunction with lax law enforcement and the support of the Pakistani intelligence agencies to terrorist organizations such as the Taliban, Al Qaeda and the Haqqani network that were sheltered in the region, explains why the FATA has been dubbed by observers as the most dangerous border region in the world. In pursuit of its own selfish gains, Pakistan transformed the peaceful and culturally rich FATA into the focal point for Jihadists in 1979 when Pakistan became a proxy of the US in its war against the Soviets in Afghanistan. The influx of thousands of militants into FATA gave rise to extremism and religious fundamentalism there. The Pakistani State radicalized and de-stabilized FATA when it suited Pakistan, only to subsequently commence military operations against the very militants that it had itself created. These operations adversely affected all spheres of life of the people of FATA, but the human cost they had to pay was most exacting – thousands of Pashtun tribesmen were killed and over two million displaced from their homes.  

The merger of FATA with KPK is being seen by many as a welcome and long-overdue step towards inclusion and mainstreaming of the people of the region. Given the discrimination and apathy that they have been subjected to over generations, any move to better their condition cannot but be appreciated. However, the reality of the present decision of the Pakistani Government is that it is based primarily on narrow ‘vote-bank’ politics rather than any altruistic consideration towards the inhabitants of FATA. The general elections of 25 July are looming over the horizon and the Pakistan Army-backed Pakistan Tehreek-i-Insaf (PTI) party appears to be presenting a stiff challenge to the ruling Pakistan Muslim League – Nawaz (PML-N). The rushed manner in which the half-baked move was pushed through without obtaining the consent of the people of FATA betrayed the real intention. The ‘FATA Interim Governance Regulation, 2018’, for example, makes only cosmetic changes to the prevalent administrative structure in FATA. It simply re-designates the PA as Deputy Commissioner, while giving him the same unrestricted powers that the former had. As could only be expected in such a situation, the merger came in for severe criticism internally from diligent representatives of the Pakistani Government, from representatives of political parties having direct stakes in the region, and most notably, from the tribal elders and leaders of the FATA. On the external front, the Afghan Government that does not recognize the Durand Line as the international boundary, articulated its strong objection to the Pakistani decision. 

Muhammad Azam Khan, the Chief Secretary of KPK province, in a letter to the Federal Ministry of States and Frontier Regions underlined several legal, constitutional and financial lacunae pertaining to the merger. His scathing censure highlighted that there was “no consensus for provision of finances. Federal government and provinces disagree on provision of funds. No reforms could be implemented. The three-year plan cannot be undertaken. Transition without money is only paperwork”. On the legal front, he stressed that abolition of Article 247 of the Constitution would render the Pakistani President powerless to make regulations pertaining to FATA. “The proposed Regulations for Fata will not have any legal basis for promulgation, creating an administrative vacuum”, he cautioned. Asad Qaiser, the Speaker of the KPK Assembly, also communicated to the Speaker of National Assembly the protestations of FATA representatives against the end of the tax exemption so-far extended to the region. Qaiser argued that “Their demands are justified for the reasons that both FATA and PATA have been exempted from taxes historically. The areas have also suffered the most by insurgencies and mass internal displacement due to military operations and natural calamities”. Such disparagement by senior government functionaries clearly exemplifies the ham-handed manner in which the Pakistani Government has decided upon the fate of the five million people of the FATA. It is deplorable that the political elite of Pakistan, prodded by pressure from the military establishment, chose to rush through a decision as momentous as the merger just to garner a few additional votes at the hustings. 

Tribal elders from all over the FATA have strongly opposed the merger. Malik Salahuddin, tribal elder from Kukikhel, on 31 May expressed serious reservations over the Constitution (Thirty-First) Amendment Bill, 2018. He lamented that the Pakistani Government had not consulted the people of FATA before legislating on it, adding that the Pakistan Army Chief and the KPK Governor had assured the elders that this would be done. Salahuddin emphasized that tribal culture was being trampled upon on the advice of non-tribal people, who knew nothing about local administrative matters and customs. He warned: “We will never accept this cruel and one-sided Constitutional Amendment”. Similarly, tribal elders of Mohmand Agency, one of the constituents of the FATA, at a press conference at the Mohmand Press Club on 28 May rejected the FATA-KPK merger. They condemned the police atrocities against tribal protesters in Peshawar on 27 May in which dozens were injured. Media coverage of these atrocities was blacked out allegedly after a warning by the Pakistan Army. At the press conference, Malik Ayaz Khan Haleemzai reiterated that the Pakistan Government had imposed the merger in haste and without seeking the consent of the people of FATA. He added that the Pakistani Prime Minister had acknowledged in an interview that most tribal parliamentarians were against the merger, but he nevertheless went ahead with it. He averred that “our demand was creation of a separate province for Fata like that of South Punjab”, which was ignored and the Pakistani State “imposed their own agenda upon us”. He warned that “we the free tribesmen will never allow ourselves to be subjugated by the KP administration”. The elders informed that they were consulting with other tribes in the tribal belt and planned to launch a mass protest movement against the merger. At yet another event, tribal elders in Ekka Ghund led by Malik Misal Khan protested against the merger and accused the Pakistan Government of undermining their tribal identity. 

Perhaps the most incisive comments on the merger came from Zar Ali Khan Afridi, a Pashtun human rights activist who founded the NGO ‘Society for Rights and Development’ in FATA in 2009 and the ‘Tribal NGOs Consortium’ a year later. He had famously described FATA as a “Human Rights Free Zone”. In his comments that appeared in The Daily Times on 27 May, Afridi stated: “I am from FATA and reject this imposed decision of Pakistan parliament. FATA belongs to its people but they were deprived of their right. This is not merger. It is occupation. It is against international law and it is a violation of Human Rights. Occupying people and their land in 21st century is not a thing to be praised. FATA is not part of Pakistan and it has a special status. Occupying FATA by Security establishment of Pakistan for Chinese interest is a gross violation of rights of 15 million people who were first made scapegoats for a fake and fraudulent war against terror and now their land was occupied. It is rejected. This is unacceptable”. In the backdrop of the huge investment China is making on the China Pakistan Economic Corridor, Afridi’s view of the merger being aimed at alleviating China’s concerns over the security to its men and assets in Pakistan is eminently plausible. 

Afghanistan, which does not accept the Durand Line as an international border with Pakistan, was quick to respond to the merger. The Durand Line Agreement is a single-page document containing seven short articles that merely commits both sides to not interfere beyond the 'Line'. The Afghan Presidential Palace on 26 May issued a statement in which it asserted that “Pakistan’s decision is against the 1921 agreement between the British India and Afghanistan”, and that the Pakistani parliament had taken the decision at a time when the “military was governing” FATA. It added: “Every decision about the tribal regions should be made in normal situation and in accordance with the consensus of the tribal people..." "...The Afghan government believes that one-sided decision under the pretext to end the British-era laws and inhuman system is not a solution to the problems”. It added: “We have always shared our concerns through diplomatic channels with Pakistan and international community about Pakistan’s military intervention across the Durand Line, especially in the tribal regions”. Pakistan-sponsored terrorist attacks in Afghanistan, launched from FATA, have been a regular occurrence for over a decade and a half. 

The hasty decision to merge FATA with KPK will create more problems and issues for both Pakistan and FATA than it will solve. The Sartaj Aziz-led five-member committee constituted to recommend ways to assimilate FATA ignored completely the option of giving full provincial status to it. It did not even seek the opinion of the people of FATA before deciding on their future, nor did it share the operational details of the merger with them. 

Pakistan has been harping on the need for a plebiscite in Jammu & Kashmir, despite Pakistan’s own non-fulfillment of the first clause of the UN Resolution being the primary obstacle to it. The shallowness and duplicity of Pakistan’s position on Jammu & Kashmir, where it has no legal title or claim, has been harshly exposed in its handling of the fate of the five million people of FATA that are Pakistani citizens, albeit ‘second class’. Maulana Fazlur Rehman, head of Jamiat Ulema-i-Islam, a former coalition partner of the PML-N government, not only opposed the merger but had also demanded a referendum to provide an opportunity to the tribesmen of the region to decide their future. A referendum would have been the logical, democratic, and time-honored way of deciding whether the Pashtuns of FATA would have a separate province, would merge with KPK, or indeed would choose to join their fellow-Pashtuns in Afghanistan, across the artificial, colonially-imposed, arbitrary line that masquerades as a border.