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November 14, 2018

Judicialisation in Fata


November 14, 2018

For decades, the people of the Federally Administered Tribal Areas (Fata) were forcedly kept under the draconian colonial Frontier Crimes Regulation 1901.

The FCR violated basic human rights and was also repugnant to the fundamental rights enshrined in – and the essence of – the Constitution of the Islamic Republic of Pakistan. However, for some petty vested interests, the government and the key policymakers of the state always turned a deaf ear to these human rights violations in the tribal areas.

Due to the flawed policies of the state, since independence, Fata was governed under the FCR and the people had no access to the country’s constitutional courts. Sadly, the constitution had specifically barred these courts from working in Fata. Therefore, the country’s apex courts had constitutionally no jurisdiction to hear and decide the unconstitutionality of the FCR or any other law enforced in Fata.

This is why every time the ultra vires of the FCR was challenged, as the Superior Court has no jurisdiction in Fata, the colonial-era law remained alive. Another example is the sub-judice petition before the Supreme Court of Pakistan, in which the legality of the infamous Actions (in Aid to Civil Power) Regulation 2011, was challenged, and in which the question of jurisdiction was the key question of law.

After 110 years of the FCR, policymakers finally realised the damage caused by this law. They also understood the deprivation faced by the people and became more aware of the need and importance of mainstreaming Fata; this finally resulted in the passage of the 25th Constitutional Amendment in parliament. The most important development of this amendment, besides the merger, was the extension of the jurisdiction of the Peshawar High Court (PHC) and the Supreme Court of Pakistan to Fata.

It was for the first time in the history of Pakistan that the people of the tribal areas were given access to the country’s constitutional courts and were also promised the same justice and legal system as that available to those in mainstream Pakistan.

After that, the federal government – ignoring the promises it had made with the people of Fata and undertaken before the Supreme Court of Pakistan – proceeded against the spirit of the constitution and promulgated the Fata Interim Governance Regulations 2018. I have argued before as well that the IGR is an unconstitutional law and is a worse form of the repealed FCR.

Soon after the IGR was promulgated, it was challenged before the Peshawar High Court as being unconstitutional. The petitioner had challenged many portions of the IGR, including the judicial powers conferred on executive officers like deputy commissioners and assistant commissioners, which violated Article 175 of the constitution that which specifically guarantees separation of judiciary from the executive. Unfortunately, the government has upheld and enforced the same pattern of the repealed FCR.

On October 30, a bench of the PHC struck down the Fata Interim Governance Regulations 2018, by declaring it contrary to the spirit of the constitution. The bench also directed the federal and Khyber Pakhtunkhwa governments to legislate or make alternate arrangements within the parameters of the constitution. The unconstitutional IGR lasted for only five months. The PHC order also proved that the people of Fata suffered for more than a hundred years, and in the absence of judicial review, the FCR remained in-field. The order also recalled the importance of the jurisdiction of the country constitutional courts in guaranteeing the constitutionally guaranteed fundamental rights.

It was for the first time in the history of (now former) Fata that the high court has struck down a law for being ultra vires to the constitution. The PHC decision is confirmation of the fact that the IGR is an extension of the FCR through which the people of Fata were deprived of their rights for decades.

Now when the PHC has struck down the IGR, there is a legal vacuum and confusion regarding the legal position of Fata. In the interim, people are suffering because the administration has stopped working. There is a lack of planning on the part of the government on how these districts will run and how the administration of justice in the region will proceed. If there is no legal system, apart from civil matters, what will happen to criminal cases? How will FIRs be registered and who will carry out the investigations? Who will conduct the trials in the absence of a judicial system in these tribal districts? After the PHC judgment has repealed the interim system, no one is clear on the legal position in the tribal regions.

Today, when there is an urgent need to establish a legal system in the tribal districts, the importance of a separate and independent judiciary cannot be ignored. The federal and KP governments should consider the Peshawar High Court’s decision and should refrain from enacting any unconstitutional legal system which, if promulgated, would receive the same fate as the IGR. Further, the PHC decision found an explicit precedent for the federal and KP governments to take cogent steps for real mainstreaming instead of some interim or short-term approach.

For proper judicialisation in Fata, the federal and KP governments should fulfil their promises by ensuring that the tribal areas have accessibility to the subordinate judiciary, and guaranteeing the separation of the judiciary from the executive as per the constitution.

The writer is a Peshawar-based lawyer.

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