PESHAWAR: The government of Khyber Pakhtunkhwa has raised a number of legal, constitutional and financial issues with the federal government regarding merger of the Federally Administered Tribal Areas with the province and identified their possible fallout on Fata’s transitioning and mainstreaming.

In a letter addressed to the Ministry of States and Frontier Regions (Safron), the chief secretary of Khyber Pakhtunkhwa, Muhammad Azam Khan, recalled that the federal government had announced a financial package of Rs1 trillion over ten years for Fata, out of which Rs200 billion was to be provided during the first three years with the assurance that the funds would not lapse and would only be used in Fata.

“(There is) 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,” the official communication said.

A plan without funding is just paperwork, says official

“Provinces are ambivalent on the issue of financing,” Mr Khan wrote, demanding “a binding and written commitment” from Islamabad without waiting for the outcome of the National Finance Commission award, which it added, could take a long time.

But perhaps one of the most serious issues highlighted in the letter pertained to the abolition of Article 247. The chief secretary wrote that without the powers to make regulations by the president, the existing regulations would have no legal footing.

“The proposed Regulations for Fata will not have any legal basis for promulgation, creating an administrative vacuum,” the officer warned.

The letter said the Action in Aid of Civil Power Regulation, also enforced under Article 247, would lose its legal cover as a result and all actions taken under the aforementioned regulation would become illegal. The chief secretary proposed promulgation of ordinances both by the federal and provincial governments to provide protection to rules and regulations in the erstwhile Fata.

Article 247 of the Constitution, which has been done away with after adoption of the 25th Constitution Amendment, provided for executive authority of the federation over Fata and had empowered the president to issue directives for its governance.

Mr Khan further pointed out the lack of a ‘saving’ clause in the constitution amendment for facilitating transition and protection of action already taken, which might result in administrative, legal and ‘prosecutional’ vacuum. “If not solved, the same will not stand judicial scrutiny,” his letter said.

It said that leaving the term “Tribal Areas in a truncated (Article) 246 created doubts and left many questions answered”. “Legal minds of the federal government should clarify if and [provide] rationale of retaining it. Furthermore, the legal minds should also propose measures as to how best to use the term ‘Tribal Areas’,” it said.

Under the new scheme of things, the erstwhile tribal agencies will be called tribal districts.

It is evident that in the rush to get the amendment passed from both the houses of parliament and the provincial assembly, parliamentarians and legal wizards of the federal government did not pay much attention to its legal implications and possible fallout.

The letter pointed out that because of the amendment, the Nizam-i-Adl Regulation would also lose its legal basis, leading to administrative vacuum in the Malakand Division. It was suggested that the provincial government would promulgate an ordinance now to provide legal cover to the regulation as well as to the role of the Levies in the division.

Officials in Peshawar say the issues were raised at a meeting in Islamabad the other day and threadbare discussions were held with officials of the Safron ministry and former special assistant to the prime minister Barrister Zafarullah Khan.

Chief Secretary Khan, meanwhile, expressed optimism that all the problems would be overcome in due course of time. He said the transition entailed massive infrastructure development and recruitment to put in place the required administrative, security and judicial machinery.

“Without funding, nothing can be done,” he said. He hastened to add that the provincial government would tighten its own belt and fork out the necessary resources to set the ball rolling in the tribal region, now part of Khyber Pakhtunkhwa. “They are our brothers and we owe it to them. We wouldn’t wait for the federal government to start the process.”

Mr Khan said he had already begun deliberations and the necessary spadework on creation of a new administrative system, depending on the availability of resources from the federal government, but would move ahead with the money available in his province.

The plan included a situation-based and time-bound conversion of tribal areas into properly administered areas and identification of areas for staring direct policing mechanism as soon as possible and conversion of Levies and Khasadars into police, besides finalisation of the Local Government Act based on the province’s law but with some modifications considering the ground realities.

“It [the merger] is good for the country and we will ensure that it [the bill] is implemented seamlessly as soon as possible in accordance with the aspirations and expectations of the people,” Mr Khan added.

Published in Dawn, June 2nd, 2018