Pakistan President Mamnoon Hussain signed the 31st constitutional amendment merging the Federally Administered Tribal Areas (FATA) with the country’s Khyber-Pakhtunkhwa (KPK) province on May 28. With this final step, the formal process of changing the entire legal character of a region renowned in history and legend as the home of a proud, fiercely independent people wedded to their customary law, Pakhtunwali, will now begin. It is unlikely that the changeover will be entirely smooth and the consequences completely as anticipated or planned by the Pakistan state.
The road to the constitutional amendment began in November 2015 with the appointment of the FATA reforms committee under the chairmanship of Sartaj Aziz, then foreign policy advisor to Prime Minister Nawaz Sharif. The committee’s appointment came after the Pakistan army undertook operation Zarb-e-Azb against Tehreek-e-Taliban-Pakistan (TTP) militants in North Waziristan in June 2014. The army ruthlessly threw all its might against the TTP and depopulated wide swathes of territory leading to large number of internally displaced people and destruction of houses and infrastructure. The travails of the tribal people continue.
Conversations with retired Pakistani generals on the margins of Track II meetings a few years ago revealed the army’s conviction that a new and more mainstream civilian set-up and rapid development work would be required in FATA as a whole to prevent North and South Waziristan’s return to status quo ante. It is obvious that the army also concluded that it would now need to establish a permanent presence in FATA. That would not be possible unless its constitutional status was transformed and brought in line with the rest of Pakistan.
The army’s view found resonance with the political class and with sections of academic opinion. FATA’s basic law, Frontier Crimes Regulation (FCR) and the structure of judicial and public administration to implement it was based on a completely different model, considered anachronistic by a body of Pakistanis for many years. However, many in FATA and in KPK, as also outside the area, were and continue to be opposed to the introduction of administrative and judicial systems that are alien to the traditional ways.
So, what was the traditional set-up in FATA which hitherto found constitutional sanction?
FATA in History
Historically, no central authority in India or Afghanistan succeeded in penetrating the FATA region. Its mountainous terrain with valleys and passes, some on the Afghanistan-Indian sub-continent routes, provided the tribes opportunities to harass travellers and raid the plains. At the same time, the nature of the country made pursuit by central armies very difficult. Punitive expeditions were mounted periodically but the tribes absorbed them and continued with their ways. This was so when the Sikhs controlled Peshawar during Ranjit Singh’s time and earlier when the Kabul rulers held sway over Pakhtun lands south and east of FATA. The British acquired the area after the end of Sikh rule following the Second Anglo-Sikh War in 1849.
FATA under the British
The British followed a dual approach in dealing with the trans-Indus Pakhtun lands which all became part of the large Punjab province with its capital at Lahore. They decided that some Pakhtun areas including Peshawar would gradually become akin to the district administrations in the rest of the Raj; these were eventually called the settled districts. The mountainous region, however, was to be within the British political and security sphere but not subject to normal British Indian judicial and administrative systems.
Essentially, the tribes were to govern themselves, according to Pakhtunwali. However, to provide a formal basis, the British sought to weave this in with formalised structures to administer. The FCR, first imposed in 1872, was refined but its main principles have continued even after 1947. It operates on the basis of collective instead of individual responsibility. Thus, for a crime committed by a tribe member against the government, the entire tribe got punished with collective fines, razing of villages, destruction of agricultural lands.
The British administrative presence in the tribal lands was “skeletal”. It consisted of political agents who combined all the authority of the state in their office. There were assistant agents and other lower officials but they all operated through jirgas or councils of elders. Traditional tribal leaders, the maliks, wielded social authority while the mullahs exercised religious influence.
The British pressured the Afghan ruler, Amir Abdur Rehman Khan, to agree to the demarcation of spheres of influence in 1893. The Durand Line drawn for this purpose separated the tribal areas from Afghanistan which does not till today accept it as the border. With the Durand Line a fixed if porous zone for the tribal areas was established. In 1901, the Pakhtun lands were taken out of Punjab and the North West Frontier Province (NWFP) was created consisting of the settled districts and the tribal areas. That province continues in the same territorial disposition till today though it was renamed as KPK in 2010.
FATA in Pakistan
FATA continued to be governed by the Pakistan state in accordance with British practices on the basis of assurances given by Mohammad Ali Jinnah, the architect of Pakistan, to the FATA maliks. As the Pakistani scholar, Muhammad Akbar Malik notes, “Pakistan opted not to keep the troops in the region after the maliks of Khyber, Kurram, South and North Waziristan Agencies signed an Instrument of Accession with Governor-General Mohammad Ali Jinnah in return for continued allowances and subsidies, autonomous status, with Governor-General’s direct administrative jurisdiction”. Thus, the institution of the political agent continued and FATA remained outside the mainstream of the country’s national life. The Pakistan state though created three new agencies from the original four to establish a more intense presence without changing the administrative and judicial structures. Significantly, the writ of Pakistan’s superior courts did not extend to FATA.
FATA in the 1970s and Thereafter
This situation continued till the mid-1970s though during the decades since independence FATA began to emerge as a base of smuggling operations. It remained impoverished and population pressures developed. FATA residents began to look for employment not only in the rest of Pakistan but also in the Gulf states which boomed with the oil price rise after the 1973 Arab-Israeli war. This is also the period when the destabilisation of Afghanistan began with the Daud Khan coup in 1973, to the communist take-over in 1978 and thereafter the Soviet ingress in December 1979 and Pakistan becoming a frontline state in the US-Soviet strife in that country. FATA was directly impacted.
With the Afghan Jihad, as Rustam Shah Mohmand, a former member of Pakistan’s civil service who served as chief secretary of KPK, the country’s interior secretary and its ambassador in Kabul and is an authority on FATA, noted, “Hundreds of thousands of weary, shocked Afghans began to pour into the Tribal Areas and beyond, fleeing from insecurity…”. And thousand of Mujahideen took their turn in crossing over into Afghanistan from their sanctuaries in the Tribal Areas….”. These developments began to loosen the fabric of FATA society. The changes that set in especially weakened the position of the maliks, the traditional leaders of tribal society.
The social and political forces set in motion kept moving after the Soviet withdrawal from Afghanistan in 1989 and the 1990s. The decade witnessed the end of Najibullah’s government in 1992, the four years of Mujahideen control of Kabul and from 1996 the expansion of the Taliban rule in Afghanistan. During the decade a sharper religiosity and non-traditional Islamic mazhabs also entered FATA. What precipitated radical changes was 9/11, the consequent Taliban reverses which led them to flee into FATA and other parts of Pakistan, their regrouping in the safe havens and with Pakistan’s support again becoming a potent force in Afghanistan.
Since then FATA witnessed traumatic stresses to its order and way of life and it became a base for militancy and terrorism. Its social fabric frayed completely, its maliks were killed in large numbers by the militants who became the new power brokers, and some mullahs became socially and politically powerful. While these processes were on the army made forays in the tribal areas, at first tentatively and hesitatingly but finally with the TTP unleashing a sustained terrorist campaign against it, the army over ruled the politicians and decided to launch its massive Zarb-e-Azb operation in which it used air power too.
The Zarb-e-Azb action was the culmination of a process of gradually moving the Pakistan army into FATA which began with the fall of the Afghan Taliban regime in Afghanistan in November-December 2001. At that time, Taliban and al-Qaeda leaders and fighters had moved across the Durand Line into FATA and KPK. They found refuge; the Taliban found space to regroup. Focussed on the al-Qaeda, the US pressured Musharraf to pursue the al Qaeda in particular. On his part, Musharraf wanted to ensure that Pakistan’s instrument in Afghanistan, the Taliban, could be quickly revived and rebuilt. Thus, an implicit bargain was stuck between the US and Pakistan.
Initial army forays into FATA were against foreign non-Afghan Taliban elements. However, the tribes were enraged and saw these moves as an assault on time-honoured understandings between the Pakistan state and the FATA tribes. The tribes were also angered against US drone attacks which began in FATA in 2004. While they targeted terrorists they also resulted in considerable civilian casualties. The entire equilibrium of FATA was disturbed and some sections turned against the army. These were disparate groups but attempts at co-ordination among them were made. Later they began to be called the Pakistani Taliban and formed the umbrella group, TTP. These groups also formed an association with the Afghan Taliban.
There is no doubt that the army’s ruthlessly carried out operation succeeded in forcing the TTP leadership to seek refuge across the Durand Line in Afghanistan. From there they harassed the Pakistani army periodically in FATA but there back has been broken. The operation also led to the movement of people into Afghanistan as refugees though Pakistan now claims that they have moved back.
The Sartaj Aziz committee did not include any representatives of FATA. Its members were the governor of KPK, federal ministers and officials. It claimed that it conducted wide consultations as required under the constitution. However, the opponents of changing the entire character of FATA maintain that the consultation process was only perfunctory. The committee submitted its report to Prime Minister Nawaz Sharif in August 2016, to Parliament in September and to the cabinet in December, which approved its recommendations in March, 2017.
The cabinet approved that FATA would be mainstreamed in a five-year period, the FCR would be repealed to be replaced by a Rewaj (Customary) regulation. The jurisdiction of the superior courts would be extended to the FATA region. It also approved an economic and financial package for its rapid development, the strengthening of its police and greater quota for the youth in Pakistani educational institutions.
The PML(N) government dithered on whether FATA should be merged with KPK as Maulana Fazlur Rehman and Mahmood Khan Achakzai essentially for the status quo sought the creation of a separate province. The turbulence within the party because of the ouster of Sharif also delayed final decisions. However, the army and the proponents of change kept up the pressure for merger. It is also clear that the army insisted that all the legal changes be done before Parliament and the assemblies were dissolved for national elections.
Thus, the constitutional changes were rushed through Parliament and the KPK assembly days before they were dissolved; stand-in Prime Minister Shahid Khaqan Abbasi bit the bullet and the constitutional amendments received support of all parties barring those of Rehman and Achakzai.
The merger has been hailed almost all over Pakistan. It has been seen as the end of an antiquated and iniquitous system that allowed criminals to seek refuge and smuggling to flourish, seriously damaging the economy. However, experienced Pakistani observers argue that the FATA people did not want or need systemic changes but an end to its militarisation, infrastructure development for whatever little there was has been destroyed in the past decade and a half and a curb on the excesses of the army. They concede that some systemic adjustments were needed but now an inefficient and complex system of administration would be imposed on the FATA people. They point out that crimes in FATA were very low and justice delivery swift but now that will completely change. Finally, they fear that allocated financial resources would be spent on the establishment of the administrative apparatus then on the people’s needs.
The fact is that this decision has been pushed by the army and now it will be permanently on the Durand Line. Gradually, the tradition of free crossings on the Durand Line will be impacted though it is doubtful that it will effectively reduce smuggling or the movement of criminals. Consequently, the Pakistani and Afghan Pashtuns will drift apart, over time, more than now. The Punjabi dominated state will extend its tentacles in the final bastion of the Pakhtuns. Its coercive apparatus, the army, will now have a legal basis to do so.
Afghanistan has protested against the FATA changes. It said that the changes were unilateral and inconsiderate. It said that any military or political decision-making in the tribal areas required consultations with Afghanistan. It asserted that the changes were contrary to the 1921 treaty between Afghanistan and British India. It also said that changes that would change the independent character of the tribes would not he helpful in addressing current issues. Pakistan swiftly rejected the statement and reminded Afghanistan not to interfere in its internal affairs.
The Afghan statement is really proforma and for the record. The day the constitutional amendment was adopted, senior Afghan officials were in Islamabad to urge Pakistan to pressure the Taliban to come to the negotiating table. President Ashraf Ghani is currently going out of the way to cultivate the Pakistan leadership and the killing of Mullah Fazullah, the TTP leader, in Afghanistan is part of the exercise to gain Pakistani support for Ghani’s peace initiative. Hence, there may be merit in the belief of some Afghans that their government protest against FATA changes may have been co-ordinated with Islamabad.
For many millennia the FATA tribes were able to maintain their autonomy. Now that is likely to fundamentally change. There may be resistance and the Pakistan state may finally keep part of the traditional systems in FATA but the die is cast.
Vivek Katju is a former secretary in the Ministry of External Affairs who served as India’s ambassador to Myanmar and to Afghanistan.