Fata Merger, Pakistan, FATA, FCR, NFC, KP

One of Pakistan’s dilemmas, ever since its inception, has been the matter of its frontiers. Even after the country’s partition, in August 1947, the Pakistani Government has been constantly involved in negotiations and dialogues with regards to the inclusion of several territories whose fate was yet to be decided. The Federally Administered Tribal Areas, better known by its abbreviation FATA, is one such territory. In truth, this is a problem that Pakistan in some ways, inherited from the British Raj. FATA served as a buffer for the Raj, against the unrest in Afghanistan, and when the eventual decision was made to control the tribal regions, it came in the shape of the Frontier Crimes Regulations (FCR). The FCR placed power onto the political agents, who throughout history, engaged in plundering, abusing and mistreating the population of the region.

The trend of mistreatment, in various forms, continued post-partition because of which the region was marred with social, economic and political issues. In 2017, a decision was made to pass reforms in order to bring prosperity and stability to the region, and raise the living standards of its population. Nonetheless, the issue got engulfed in the middle of a political deadlock where two options remained, each with its own set of opportunities and challenges. The first option was to create a separate province of FATA. The second was to merge this region with Khyber Pakhtunkhwa (KP) province. The people sitting in the high echelon of the state decided to go with the second option, and recently the bill was passed in the National Assembly, KP Assembly and the Senate on 27th May, 2018.

This merger will ensure that that the judiciary, bureaucracy, and all other relevant state organs will be able to function in the region and hence ensure a wave of transformation from within. This has been long overdue as it would allow the people of the region to attain a similar social status as their provincial brethren. Moreover, it will rid FATA from the dreaded FCR rule, which has rightfully been known as the ‘black law’ in the region as it represents the last vestiges of the British colonialism.

The disposition of FATA mergence will follow a set of reforms in the region. This merger will ensure that that the judiciary, bureaucracy, and all other relevant state organs will be able to function in the region and hence ensure a wave of transformation from within. This has been long overdue as it would allow the people of the region to attain a similar social status as their provincial brethren. Moreover, it will rid FATA from the dreaded FCR rule, which has rightfully been known as the ‘black law’ in the region as it represents the last vestiges of the British colonialism. This would be a significant step that will provide the people of FATA with rights that they have been alienated from for an unfair amount of time. It will surely bring peace, prosperity and tranquility while setting the region on its path to progress.

There is one major concern regarding the decision of merger. The projects related to development in KP have been going on for quite some time. These projects were designed keeping the present setup of the province in mind. Merging FATA with KP at this point would result in unforeseen challenges to these projects. Moreover, FATA might not benefit from these projects at the pace that they should have. The institutional setups in KP will inevitably take some time before they emerge or develop in FATA at a similar level. This inequality might lead to disorganization and raise claims of continued violation of rights and unfair share in the development projects. Owing to how drastically backwards the FATA region is, it will require special incentives and projects to achieve parity with the rest of the province. Another factor to consider here is to see what happens to FATA’s own institutions post-merger. How will this merger deal with the political agents and the tribal jirga systems that have been in place in FATA for decades is another question. More importantly, is there a policy mindful of FATA’s unique social framework? The Government of Pakistan and the Provincial Government of KP should chart down the policy for the pointers discussed above.

Another point to ponder is that, after the inculcation of FATA in KP, there will be a dire need to facilitate the people of FATA as an integral part of KP. Ensuring, and giving, them a sense of ownership will allow FATA to mold its institutions and other such organs to serve the region in the best way possible. Furthermore, it will allow them access to the National Finance Commission (NFC) Awards. This will bring much needed infusion of cash, capital and financial resources that will help KP in reorganizing their internal setup so they can merge FATA administratively. FATA region has suffered heavily, both in terms of civilian casualties and loss in property. Regardless of its population, it is a legitimate demand that these sacrifices be acknowledged and FATA be aided financially to recover from these losses. A special unit should be designed for the losses of FATA under KP Provincial Government that will look after this issue.

The fact of the matter is that FATA-KP merger depends upon the population and administrative needs. Now, if we were to consider the administrative needs which are directly proportional to population. Then it is pertinent to analyze the demographics.

PROVISIONAL SUMMARY RESULT OF 6th POPULATION AND HOUSING CENSUS – 2017

Administrative Unite

Households

Total Population

1998-2017

Average Annual

Growth Rate

Pakistan

32,205,111 207,774,520

2.40

Khyber Pakhtunkhwa

3,845,168 30,523,371

2.89

FATA

558,379 5,001,676 2.41

Punjab

17,103,835 110,012,442

2.13

Sindh 8,585,610 47,886,408

2.41

Balochistan

1,775,937 12,344,408

3.37

ICT

336,182 2,006,572

4.91

 

Rather than just comparing population size, a wiser approach would be to predict a forecast of administrative needs which will help in robust development of FATA under KP. Why not take a decision that is destined to be taken in 10–20 years, today? For this purpose, growth rate should be calculated and that will give an idea of future needs. The table shows a growth rate of 16 percent for FATA, according to 2017 census. Whether or not this rate is significant enough is debatable. As the 2017 census comes attached with controversies, MNAs Shahab Uddin Khan, Bismillah Khan and Sajid Hussain Turi claim that the census does not include missing persons which amount to more than three million IDP’s. The total figure for FATA’s population is double of what is shown, and so the calculation may be under projected.

Finally, as the decision of merger came from the Assembly, FATA will now become busy in building its own judicial, political and bureaucratic setup which will take a transition period of at least five to ten years. The merger brings an end to FCR and extends judicial powers of Supreme Court and High Court to FATA. Till transition phase is completed, cases will be brought to Peshawar courts from FATA, but apart from adding burden to the courts, it poses the problem that the people from far-flung areas of FATA will have to come to Peshawar for case hearing. The issue requiring immediate attention is the establishment of lower courts in these regions.

The bill states that ‘in the Constitution, Article 247 shall be omitted’.  This holds two legal meanings: it is either ‘mandatory’ or ‘permissive’; either ‘may’ or ‘shall’. So, what this all means is that FATA will merge with KP but its parliamentarians will have no powers if Article 247 is not aborted.

Another important point requiring attention is that the powers of the Supreme Court and High Court have not been extended to FATA as yet, whereas a mere notification required could have been announced to deal with this on the same day. Therefore, the State should not make further delays at the expense of the future of the people of FATA.

FATA is a war-stricken region with thriving terrorism, and arms industry as its only source of revenue generation. Apart from agriculture, infrastructure and industry establishment, human resource and capacity building also need to be focused upon. All these require time and money. According to the NFC award, FATA will be given Rs. 124 billion of extra funds, and Rs. 1 trillion specific fund, for ten years which cannot be utilized elsewhere. However, this is just two percent of the share from the NFC fund and according to FATA representatives, this should be at least four percent because the task at hand is too large and the gap between KP and FATA is too wide.

Resources allocation and fund management is another key issue. States and Frontier Regions Division (SAFRON) is given responsibility for this task by the Federal Government. With the decision of merger, what will be the future of SAFRON? Will its scope and responsibilities be strengthened or will it be replaced by some other body? One proposal is that a FATA reform unit be set up, which will be headed by retired senior army officers or judges, who will have executive powers equivalent to those of a governor. The person in-charge will be responsible to look after the funds and resources allocated for FATA.  Issues of resource and budget have always been a cause of rift between provinces and may lead to a rift within the province, therefore, needs to be handled with care. There are a lot of such administrative questions left to be answered along the way of its transition. Adding to these issues is that of political representation. The seats of KP Assembly will increase to 147 from 126, according to the 30th Amendment of the Constitution. The general seats of Provincial Assembly will increase from 99 to 117. Also, women’s seats will increase from 22 to 26, while minority seats will increase from three to four.

There exists amongst a segment of the public of FATA, a feeling that their fate was decided not by them nor their representatives rather others. The reason for this is Article 247 which ensures that even though representatives of FATA were present, they had no power to exercise their right. Even though the FATA reform committee had gone through the long consultative process with various stakeholders, this perception existed. The bill states that ‘in the Constitution, Article 247 shall be omitted’.  This holds two legal meanings: it is either ‘mandatory’ or ‘permissive’; either ‘may’ or ‘shall’. So, what this all means is that FATA will merge with KP but its parliamentarians will have no powers if Article 247 is not aborted. It also leaves a fear in the hearts of FATA’s parliamentarians that some other law to reduce their power may be introduced.

Overall, the decision of merger has been welcomed in FATA and all over Pakistan, as it brings an end to 70 years of injustice and the black law. It opens a new chapter in the history and development of not only KP, but Pakistan too. We should focus our energies on the future course of action. What needs to be done is that all issues be well addressed and on time. Implementation process should be focused on and transition phase handled smoothly, in order for the merger to be successful.

Ousama Khurshid Khan

is a lecturer at the Muslim Youth University. He has done M.Phil from the National Defence University, Islamabad.

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