Redefining the National and International Law
Does the law constitute a state or does the state constitute the law? To this query, no binary answer can be proffered. Pakistan as a state, besides being a product of politics, was very much a product of constitutional law. Just days before the end of the constitutional period of the last PML-N-led democratic government, the constitutional law of Pakistan was once again amended to ‘merge’ the Federally Administered Tribal Areas (FATA) into Khyber Pakhtunkhwa (KP) province. Changes in constitutional law also affected and reaffirmed the international law relating to FATA. Instant write-up is aimed to elucidate the latest developments in a composite manner and also to assess how these developments are likely to affect Pakistan. Each development is discussed separately:
1. 25th Constitutional Amendment
The Constitution (Twenty-Fifth Amendment) Act, 2018, which President Mamnoon Hussain signed into law on May 31, introduced a number of changes to the Constitution of Pakistan. These changes have been introduced by using the ‘omitting’ and ‘substituting’ techniques of legal drafting, which, instead of rewriting the substantial provisions, rely on using the continuity of earlier constitutional text. Briefly, the changes introduced are:
a. Article 1 of the Constitution is amended through omission to exclude the reference to FATA from the territories constituting Pakistan;
b. Articles 51, 59 and 106 have been amended by way of substitution to add seats of the KP province in the National Assembly and to subtract seats of FATA from the Senate of Pakistan;
c. Article 246 introduced the nub of the amendment. Article 246 that defined the ‘Tribal Areas’ has almost totally been omitted. The amendment clearly states that the ‘Tribal Areas’ adjacent to KP stand ‘merged’ into it, and the ‘Tribal Areas’ adjacent to Balochistan shall stand ‘merged’ into it. The use of the word ‘merge’ is legal inasmuch as it subsumes the earlier legal entities into the two provinces;
d. Article 247 has been totally omitted. The effect of omission is constitutional in nature as the erstwhile constitutional provision dealt with ‘Administration of Tribal Areas’. The omission has impliedly repealed the authority of the President to pass orders relating to the Tribal Areas; the effect of the repeal of the authority of the President is that the Frontier Crimes Regulation (FCR), 1901, stood repealed. It may be noted that the FCR was issued in pre-partition time and was preserved through constitutional indemnity clauses in successive constitutional instruments and it finally got repealed through omission of article 247 from the Constitution of Pakistan. An offshoot of this omission is that it has impliedly repealed the recently promulgated the Supreme Court and High Court (Extension of Jurisdiction to the Federally Administered Tribal Areas) Act, 2018, which was enacted by invoking sub-article (7) of erstwhile article 247.
2. International Law
The Twenty-Fifth Constitutional Amendment is not without international significance. With constitutionally merging the Tribal Areas into Khyber Pakhtunkhwa and Balochistan, legally and jurisprudentially, there is no legal entity with the name of FATA now. The transformation is not only political but also legal. Unfortunately, and with little surprise, Afghanistan chose to react to the constitutional development. The reaction by Afghanistan was tantamount to violating its international obligation of non-interference in domestic affairs of another member state of the United Nations as ordained upon it by Article 2(7) of the UN Charter. Its claim, if any, now stands demolished in the wake of the latest constitutional amendment. It may be noted here that Afghanistan used to found its claim to the Tribal Areas of Pakistan on questioning the validity and existence of the Durand Agreement of 1893 that defined the 1200-mile-long border between the former British Indian Government and the Afghan Government headed by its Amir, Abdur Rehman.
The claim was always based on assumptions and belied many a principle of international law. In the first place, it was against the customary international law. The evidence of the customary international law was state practice between the British and Afghanistan from 1893 to 1947; during the period, the existence of Durand Agreement was not questioned. Series of successive treaties on behalf of Afghanistan also provided legal recognition to the Durand Agreement. These treaties, inter alia, included the Anglo-Afghan Pact, 1905 (Dane-Habibullah Treaty), the Treaty of Rawalpindi (1919), the Anglo-Afghan Treaty (1921) and the Trade Convention of Kabul (1923).
Contrary to the established legal position of the Durand Agreement, Afghanistan raised various objections. One objection was that the Durand Agreement was a product of duress and coercion by the British. On record, however, there was no evidence to support this. Besides, the Vienna Convention on the Law of Treaties (VCLT), 1969, clearly provided, in its Article 52, that a treaty will be void if it were concluded by ‘use of force or threat to use force’. There was nothing on record substantiating use of force or threat to use force. On the contrary, the Afghans remained recipient to subsidy from the Britishers. Principle of Rebus sic stantibus (things thus standing) was also attracted to Durand Agreement in the context of decolonization. The principle was further codified in the VCLT in its Article 62 which states that fundamental change in circumstances could not be invoked as a ground of terminating a treaty. Afghanistan tried to circumvent this principle by invoking exodus of the Britishers from the Indian Subcontinent as a ground for wriggling out of the treaty. The exodus of Britishers was, however, not without legal and constitutional arrangements. All the legal obligations of the Britishers were succeeded by India and Pakistan.
The principle of legal succession, which was a part of customary international law, was later codified into the Vienna Convention on the State Succession (1978). In the era of decolonization after the Second World War, Article 11 of this Convention specifically preserved boundaries established by treaties; therefore, objections raised by Afghanistan did not have any basis. With Durand Agreement duly preserved by the international law, the action of legally constituting the Tribal Areas by Pakistan as part of its provinces is very calculated and is in consonance with its domestic affairs.
Pakistan is a constitutional democracy and the use of legal statecraft to manage its domestic affairs is very much its right and must be recognized and respected by the comity of nations.