Tribal Arias beyond the Durand Line or FATA
By: Dr. Noor Ahmad Khalidi
27 May 2018
The Pakistani government has decided to incorporate tribal areas (FATA) in the state of Khyber Pakhtunkhwa, which was called Northwest Frontier Province till recent years, and thus officially add the areas to Pakistani soil. The Pakistani parliament recently passed a bill approving the tribal areas along the Durand Line with the Khyber Pakhtunkhwa State. Jammat Islamic Party led by Maulana Fazlur Rahman and the Awami National Pashtunkhwa under the leadership of Mahmoud Khan Achkasi did not participate in this parliamentary session.
The FATA or the Federally Administered Tribal Areas (Tribal Areas) are in fact areas that, under the Durand Treaty, with the agreement of the then Amir Abdul Rahman Khan, temporarily administered by the British India without being officially part of British India territories. After the creation of Pakistan, these areas remained legally excluded from the formal territory of the states comprising Pakistan who became the successor to the respective British India territories. However, the administration of the tribal areas continued by the federal government of Pakistan, as was the case with British colonials. According to a report by the UK’s official legal advisor in 1949, since these areas did not include in the territory of the British India, the Afghan government has the right to re-annex them with the consent of the tribal people of these areas.
The Ministry of the Border and Tribal Affairs of Afghanistan has denounced the decision by Pakistan to add tribal areas to the state of Khyber Pakhtunkhwa without the consent of the people so affected. According to a news release by the Ministry of Borders and Tribal affairs of Afghanistan to Radio Liberty Islamabad did not take the views of the tribal people in its action. Mohammad Yaqoub Ahmadzai told Radio Liberty last night that Islamabad should consult with the Afghan government on the status of tribes according according to the existing protocols.
“Our position is to give the tribes the right to express their wishes. They do not wish to merge their systems with the Kheber Pakhtonkhwa, they do not want Pakistani Police or Army to move into their respected free areas”.
It should be emphasized that agreement by tribal people in determining their fate is the condition of the legitimacy of any action concerning these areas, not the decision of the parliament of Pakistan. The Pashtun population in Pakistan is over 35 million.
Unfortunately, a number of fanatical anti-Pashtun people affiliated with Jamiat Islami party in Afghanistan, who do not waste any chance to express their opposition to the Pashtun people, and are unaware of the historical past and legal status of these areas, once again have jumped in support of Pakistan and voiced to rename Pashtunistan Square in Kabul and the dissolution of the Borders and Tribal Ministry. Let’s not forget that it was the same Jamiat Islamic party that dissolved the Afghan army in 1992 in consultation with the Pakistani government and sold all its heavy weapons to Pakistan.
Unfortunately, at this crucial moment, the existence of a die-hard Jamiat Party member as the representative of Afghanistan at the United Nations, who does not believe in the legitimate rights of the Pashtun people beyond the Durand Line to determine their own fate, can seriously undermine the diplomatic interests of the Government of Afghanistan, and to voice concerns of the Afghan government to the international community.
The main reason behind this debate is the illegality of FATA’s attachment to Pakistan, not what the Afghan people want. In any case, this action of the government of Pakistan does not have any legitimacy in an international arbitration.