By Tahir Ahmad
Sep 30, 2015
On September 6, 2015, a bill was moved in the National Assembly that has called for extensive reforms in the Federally Administered Tribal Areas. This bill puts forward certain propositions related to the constitutional status of FATA by amending Article 1, sub clause 2(c) that states that tribal areas are part of the territories of Pakistan, and suggests the merger of FATA into Khyber Pakhtunkhwa (KP) as Provincially Administered Tribal Areas (PATA). Furthermore, the bill also recommends a revision of Article 247, clause 7, under which the high court does not have jurisdiction in this area, which according to many legislators simply constitutes a denial of justice.
At the time of the British Raj, FATA was viewed and maintained as a buffer zone between the British Empire and Russia. Even after partition the region has retained this ‘special status’, for purposes both strategic and otherwise; to date it remains outside the domain of state institutions. Now, as the state has been compelled to enter the area unofficially due to Operation Zarb-e-Azab, it seeks to formalize its jurisdictional claim in the area by calling for a comprehensive reform package that includes the extension of the writ of the state’s civil administration and political institutions into FATA.
The above-mentioned proposal for the merger of FATA with KP has been contested on several grounds, the foremost being that the people from these tribal areas are not accustomed to state institutions and that these areas can therefore only be best governed by the Frontier Crimes Regulation (FCR) – an infamous law from the time of the British Raj. Several tribal leaders, including former Senator Hameedullah Jan Afridi are also opposed to the idea that FATA be merged into Khyber Pakhtunkhwa at all, and advocate the case for a separate provincial status for the area. They hold the conviction that provincial bureaucracy will exploit the simple people of these areas and, supported by tribal associations, these tribal legislators argue that a separate portion in the NFC should be allotted to FATA, as the distribution of developmental budget will remain a challenge if FATA is merged into Khyber Pakhtunkhwa.
These are the problems that are likely to become the focus of debate surrounding this bill and the proposal for mainstreaming FATA. In this context, the political implications for the tribal communities, Khyber Pakhtunkhwa as well as the rest of the country are worth considering.
While some of these arguments may have logical explanations, they fail to fully contextualize the issues at hand. For instance, the argument for tribal lack of familiarity and thereby an implied resistance towards state institutions does not take into account or explain the settlement of Mohmand tribes in the established districts of Khyber Pakhtunkhwa. The settlement of people from South and North Waziristan in Tonk, Dera Ismail Khan and Bannu districts, and those from Orakzai, Khurrum and Khyber cannot be ignored when the case for FCR is being made.
The contrasting arguments in this respect are far more compelling; if the FCR is abolished and the state justice system prevails, the tribes would finally have access to a system that provides them relief from the despotic rule of political agents. Moreover, it will result in increased representation for the merged region in both Houses of Parliament as well as the Provincial Assembly, and remain unchanged for the Senate. The number of representatives in the National Assembly would also increase by 12 – a number that will have significant impact on legislation, and thereby on center-provincial relations.
Secondly, with the merger, the share of Khyber Pakhtunkhwa in the National Finance Commission Award (NFC) will actually increase proportionately. The 7th NFC award distributed the federal divisible pool funds along the following lines: 85 percent by population, followed by revenue generation, level of underdevelopment and losses in the War on Terror. Interestingly, recently provinces failed to achieve consensus on the 8th NFC award, and as a result, the 7th NFC award will be extended for another year. This unsuccessful NFC meeting indicates that the already soured federal and provincial relations may be further strained if FATA were to be merged into KP. Besides population proportion, the level of underdevelopment and losses due to the War on Terror may further act as an apple of discord between the Centre and KP.
Afridi’s claim that the provincial bureaucracy of KP would exploit the simple people of FATA, however, is not logical, as even a separate provincial status will also require a bureaucratic setup. The status of FATA as a province under the Pakistan Penal Code (PPC), Criminal Procedure Code (CrPC), and the extension of the original and appellate jurisdiction of high court will remain the same whether FATA becomes a separate province or is merged with Khyber Pakhtunkhwa. Using this argument to insist upon a separate provincial status for FATA therefore, seems an unnecessarily irrational demand.
A more rational argument in this context would be based upon constituency-based politics of development. Normally in such a political model, a chief minister from a particular district concentrates or spends most of the developmental budget on their own district at the expense of other districts. If FATA is merged with Khyber Pakhtunkhwa, it will affect the dynamics of provincial politics several ways. The merge will mean the addition of 30 million people to Khyber Pakhtunkhwa, and new constituencies in the provincial assembly. The figure of 30 million is probably significantly lower than the actual number, as it has been taken from the 1998 census – today, in addition to the natural population growth there are at least one million IDPs in FATA from North Waziristan alone; one can only imagine what the current exact population count is. This evolution in the membership of the constituencies will play a critical role in the formation of the provincial government. Furthermore, constituency-preference based political practices, together with the despotic rule of political agents, has and will continue to alienate the people of tribal areas from ideas of modernity and development – a factor that is also considered responsible for the rise of terrorism and extremism in FATA.
Under the current provincial set up the population of Khyber Pakhtunkhwa can be divided in to four zones; the Peshawar valley consisting Peshawar, Mardan, Swabi, Nowshehra and Charsadda, the Hazara Belt, from Haripur to Kohistan, the South from Kohat to Dera Ismail Khan, and Swat Valley. In Swat the ANP, JI and PTI may be stronger, but in the Hazara belt PML N is stronger, in the South the JUI, whereas in the Peshawar Valley, it is a shared domain as there is no permanent trend in electoral victories for any political party.
Adding the new zone of FATA will benefit Peshawar and the South Zone as the FR Peshawar, Khyber and Mohmand Agency will be added to the Peshawar Zone whereas North and South Waziristan, Orakzai and Khurram Agency and the adjacent FR regions will be added to the South. Thus, political parties will have to enhance their support-base in these two areas if they would like to form the provincial government in the area. In this context, the role of the JUI in the South will further increase, particularly as they already have a strong support base in the South, which effectively means a greater role for the JUI in the formation of government if FATA merges into KP. In comparison, the Mohmand and Khyber agencies in the Peshawar Valley has lower possibility for permanent constituencies, which means space will remain open for all political parties.
Lastly, the question of attributing a provincial status to FATA must also be considered from a purely administrative angle as well. A separate status for FATA is not a very feasible option; this mountainous area stretches from Bajaur in the North to South Waziristan in the South, covering seven agencies, among which there is no direct line of communication in terms of transportation and the movement of people. There are link routes between North and South Waziristan, Orakzai and Khurram Agency through which the people of this area can have easy access to Kohat, Bannu and DI Khan. Similarly, Khyber, Mohmand and Bajaur are linked to the Peshawar valley, but it is difficult to establish direct communication linkages with the tribal areas located in the South. In these circumstances, locating the capital of the province would be challenge for the government and the people of tribal areas.
The issue around the distribution of developmental budget can be resolved by fixing separate shares for every agency in the NFC Award itself, or the formation of a provincial finance commission that determines resource allocation and distribution for FATA and Khyber Pakhtunkhwa.
Before any of this comes to pass however, it is of the utmost importance that all political parties showcase the resolve and commitment needed to support such bills in the Parliament; the bill can only pass by two third majorities. Reportedly FATA legislators have been assured by the Awami National Party, the Pakistan People’s Party, and the Pakistan Tehreek-e-Insaf of their support in this regard. The rest remains at the mercy of the differences among the tribal legislators and other political parties.
There are also some who are advocating for referendum-based reforms in the region, but the question for such a referendum remains undecided, as it is not clear that whether it is a referendum on the abolition of the FCR alone or on the ‘special’ provincial status that they desire. In the context of a referendum however, it is important to remember the nature and capacity of the locals, and their limitations (political, cultural, financial as well as potential duress from the current agents and powerful entities). A biased referendum favoring the maintenance of the FCR would provide legal justification for its perpetuation, and retain the ‘black hole’-like nature of the region, alien from any experiences of modernity and state institutions. A more comprehensive strategy is required for the inclusion of tribal regions into the state of Pakistan, so that it may move into the twenty first century with the rest of the country.