The Legitimacy Conundrum – Pakistan and Tehreek-e-Taliban’s Agreement

In Blog, National Security
December 1, 2021
Abdul Aziz
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Pakistan Government has announced a series of confidence-building measures with non-state actors such as Tehreek-e-Taliban Pakistan (TTP) which have bought an array of legitimacy questions to the forefront. Firstly, can the state of Pakistan enter into agreements through the executive (Government of Pakistan)? And secondly, are these agreements legally enforceable? These are complex questions as

Pakistan Government has announced a series of confidence-building measures with non-state actors such as Tehreek-e-Taliban Pakistan (TTP) which have bought an array of legitimacy questions to the forefront. Firstly, can the state of Pakistan enter into agreements through the executive (Government of Pakistan)? And secondly, are these agreements legally enforceable? These are complex questions as there is little to no detail about the contents of these agreements which makes it hard to do determine their legitimacy or legality. Theoretically, however, the executive has the mandate and prerogative to enter into agreements but matters relating to policy and law still ultimately derive their legitimacy from the legislature (Parliament of Pakistan).

The Government of Pakistan in principle is legally authorized to form agreements on behalf of the state as stated in article 173 (3) of the Constitution of Pakistan. In article 173(4) of the constitution, it is further stipulated that no person is going to be held liable in their personal capacity for any breach of such a contract. Nevertheless, it is important to note here that there is a difference between the legality of an act and its legitimacy. Legality refers to whether the act is permitted by the law and legitimacy refers to the political validity of an act.

A legal agreement between states and non-state actors is not unheard of or unprecedented either. Pakistan in its past has reached three major agreements with TTP in Shakai, Srarogha, and Swat, and these agreements were signed with numerous Taliban leaders like Nek Mohammad, Baitullah Mehsud, Hafiz Gul Bahadar, Sufi Mohammad, Maulana Fazlullah, Faqir Mohammad, and Mangal Bagh, but none of the agreements with the Taliban factions lasted more than a few months. All previous agreements with the Taliban were conducted in Pakistan. However, the Islamic Emirate of Afghanistan has now confirmed that they are playing a mediatory role between the TTP and the Pakistan Government.

The acknowledgment of the role of mediation from the Islamic Emirate is important for multiple reasons. Firstly, the validity of an agreement where there is a foreign guarantor is much more likely to be accepted, as non-state actors like the Taliban would have trouble getting recognition under international law but since Islamic Emirate is playing a mediatory role, there is a chance that it may find acceptance. Secondly, a strong mediator government like the Islamic Emirate can perhaps ensure its implementation with the TTP who have a history of not honoring commitments.

As far as the question of legitimacy is concerned, urgent matters of law and order are often prerogative of the government in power but if a major policy change is being bought in or a new law has to be passed, the legitimacy will ultimately have to be derived from the Parliament of Pakistan. Some political experts have expressed reservation on the government unilaterally deciding a policy shift or change against the Taliban but since these are only negotiations, it’s difficult to challenge their legitimacy currently because the Government of Pakistan has not yet reached an agreement with the TTP.

Pakistan has only taken a confidence-building measure with the TTP by agreeing to a ceasefire. The ceasefire will be renewed after a month and further negotiations may begin eventually leading to a full-fledged agreement. The details of these negotiations or what the agreement may look like are not yet known to the public. In such a case, it may be predetermined to consider the legitimacy of such an agreement when they haven’t been concluded in the first place. Legally, however, the Government of Pakistan can sign contracts with non-state actors such as the TTP and the Parliament has passed resolutions against the TTP.

The only exception to this rule is that something already illegal under the laws of Pakistan cannot be contracted upon by any party. The Pakistan Government’s official stance on the matter is that all talks are being conducted in line with the constitution and they will be revealed once there is progress on them. While, time will tell whether these agreements will be successful or not, as they have historically failed to bring any real change, however, in parliamentary democracies all matters relating to long term state policy of the country have to come through the Parliament.