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Challenges, legal and political

The implementation of the phased reforms process in Fata is unlikely to have a smooth sailing

Challenges, legal and political
Peshawar, March 8, Speakers at multi-party conference on Fata’s merger with KP.

As expected, the federal cabinet on March 2 finally gave approval to the recommendations of the Fata Reforms Committee set up by the government in November 2015.

Most political parties in the country welcomed the decision, and tribal organisations from Fata celebrated the occasion. A number of students from the Federally Administered Tribal Areas (Fata) staged the traditional dance Attan in Peshawar to express their joy. However, the majority of people from Fata instead of showing their immediate reaction wondered about the impact the reforms package was likely to have on their lives.

The implementation of the phased reforms process is unlikely to have a smooth sailing.

This was to be expected as the report of the Fata Reforms Committee, headed by Sartaj Aziz, the Advisor to the Prime Minister on Foreign Affairs, had generated a heated controversy. Emotions ran high at a seminar held some months ago in Peshawar when those favouring and opposing Fata’s merger with Khyber Pakhtunkhwa (KP) province refused to listen to each other, and forced Governor Iqbal Zafar Jhagra and government officials to leave the venue without delivering their speeches.

Just a day after the federal cabinet approved the committee’s recommendations, five tribal elders challenged the report in the Supreme Court of Pakistan on the plea that constitutional provisions barred the Prime Minister from taking decisions concerning Fata. They argued that the impugned notification issued by the Prime Minister for constituting the Fata Reforms Committee was illegal and void under Article 247 of the Constitution. They alleged that setting up of the committee, holding of consultation meetings with the people of Fata and making recommendations was an attempt to circumvent the mandatory requirement of holding a tribal jirga as provided in Article 247 (6).

Former Federal Minister Malik Waris Khan Afridi, belonging to the PPP and hailing from Khyber Agency, Malik Khan Marjan of North Waziristan, Malik Attaullah of South Waziristan, Malik Bahadur Shah of Bajaur and Malik Baz Gul of Darra Adamkhel in their petition also challenged the committee’s assertion that majority of the public in Fata support the merger with KP, and termed it baseless and false.

On the surface, it seems most of the population supports the reforms as reflected by the backing given to the package by all major political parties

The petitioners attached a list of 100 eminent persons from several tribal agencies and six Frontier Regions (FRs) to show that the majority didn’t support the merger. They demanded formation of a new committee with a reasonable representation from Fata on the orders of the President of Pakistan in accordance with Article 247 to propose reforms.

Apart from the legal challenge put up by the tribal elders, there is also political opposition to the reforms package led by Maulana Fazlur Rehman’s Jamiat Ulema-i-Islam-Fazl (JUI-F). It has convened a tribal jirga on March 11 to consult elders from Fata on the issue and seek support for its seemingly determined opposition to some of the committee’s recommendations, particularly the merger with KP.

The Balochistan-based Pashtunkhwa Milli Awami Party (PMAP) headed by Mahmood Khan Achakzai has also opposed the committee’s report, though its stand isn’t as forceful as that of JUI-F which is one of the major political parties operating in Fata. Both have demanded a referendum to ascertain the views of the tribal people on whether they want to have a separate province or merger with Fata.

Incidentally, both the JUI-F and PMAP are allies of the ruling PML-N and part of Prime Minister Nawaz Sharif’s government. The government tried to persuade the JUI-F and PMAP leadership to give up their rigid stand on the issue, and even delayed the approval of the committee’s report for some time on the plea that efforts were being made to take all stakeholders on board. Critics of the PML-N even speculated that the government had a hand in prompting Maulana Fazlur Rehman and Mahmood Khan Achakzai to oppose the Fata reforms.

This was far-fetched as the PML-N government initiated the reforms process and accepted the committee’s recommendation to merge Fata with KP despite the displeasure of its two allies.

Other critics saw the hand of the military in launching the Maulana and Achakzai in a bid to block the reforms. This too was beyond belief as the military is an enthusiastic supporter of Fata reforms, and had pushed the Nawaz Sharif government in the first place to undertake this task as mentioned in the National Action Plan. Besides, the Maulana and Achakzai are no friends of the military. The latter is arguably one of the harshest critics of the military’s role in politics and a persistent advocate of unadulterated democracy in the country.

There is no way to correctly judge the mood of the Fata people with regard to the comprehensive package of reforms approved by the government. On the surface, it seems most of the population supports the reforms as reflected by the backing given to the package by all major political parties, including the PML-N, PTI, PPP, ANP and JI. Some of the tribal parliamentarians and certain groups of social activists, students and women from Fata vocally backed the committee’s report as they were seeking major reforms and are now demanding quicker implementation instead of waiting for five years to accomplish the ‘mainstreaming’ and merger with KP and 10 years to complete the special development programme to bring the tribal areas at par with rest of Pakistan.

The pro-merger parties and groups opposed referendum in Fata by arguing that it would be unconstitutional. Like the Fata Reforms Committee, they claimed that a huge majority wanted Fata’s merger with KP. The committee maintained that it had consulted over 3,500 tribal maliks and elders during visits to all seven tribal agencies, and met members of parliament and representatives of political parties, traders, lawyers, youth and civil society who wanted Fata’s merger with KP and abolition of the Frontier Crimes Regulation (FCR). The JUI-F and PMAP, on the other hand wanted referendum on Fata’s future as it was a democratic way to settle the issue.

The Fata Grand Alliance, a coalition of tribal elders and some groups, also opposed reforms without consulting the tribal people, and gravitated to the JUI-F to strengthen their platform. The rival All Fata Political Alliance persistently backed the reforms process, particularly Fata’s merger with KP.

A referendum would have been a better and democratic method to decide Fata’s fate, but there is no provision for it in the Constitution. A constitutional amendment is needed to hold a referendum. Also, there is worry that majority of Fata people could vote for a separate province as it would have a charm of its own compared to merging it with KP. Besides, the authorities are concerned that holding a referendum would open the Pandora’s Box. The people of Seraiki-speaking areas, Hazara in KP and Urdu-speakers in urban Sindh could also demand a referendum so that they could also seek their own province. Moreover, staging a referendum in Fata would be a costly affair in view of security concerns and the remoteness and harshness of the terrain.

Other recommendations in context of Fata reforms have also generated controversy or are ambiguous. One is the abolition of FCR and its replacement by the largely ambiguous Rewaj Act based on local traditions and customs. Then there is the lack of a proper roadmap to extend the jurisdiction of the Supreme Court and Peshawar High Court to Fata. Uncertainty has been created due to reluctance of the four provinces to agree to reduction of their share in the gross federal divisible pool so that Fata could receive three per cent share in it on an annual basis to fund its special development programme for 10 years.

The federal government’s failure to consult the PTI-led provincial government in KP on the process of Fata’s merger with the province is also a sore point. Chief Minister Pervez Khattak declared that KP would write a letter to the Prime Minister to remove the ambiguities in the Fata reforms package and refrain from vesting powers with the Governor House for undertaking reforms. His plea is understandable considering the fact that the federal government has accepted the reforms committee recommendation to hold elections in Fata for the KP Assembly in 2018 along with rest of the country.

This would be the first step towards merging Fata with KP, or ‘mainstreaming’ it as the document says, and keeping the provincial government out of the consultation process and not empowering it enough could create complications.

Rahimullah Yusufzai

rahimullah yusufzai
The writer is resident editor of The News in Peshawar. He can be reached at [email protected]

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