PESHAWAR: A full bench of the Peshawar High Court on Monday advised the federal government to send a reference to parliament for considering amending the relevant provisions of the Constitution, ruling that the constitutional articles barring the superior courts from exercising jurisdiction in the tribal areas and fundamental rights guaranteed to people of the country were inconsistent to each other.

The bench pronounced a short order over the issue to which extent the court could exercise its jurisdiction in tribal areas in different matters related to illegal detentions and government servants.

The bench comprising Chief Justice Mian Fasihul Mulk, Justice Mazhar Alam Miankhel, Justice Yehya Afridi, Justice Qaisar Rasheed and Justice Manzoor Hussain ruled that in light of two recent Supreme Court judgments, the high court could not exercise any jurisdiction in the Federally Administered Tribal Areas (Fata).

The bench advised the federal government through the law and justice ministry to send a reference to parliament, including the Senate and the National Assembly, for removing inconsistencies among the constitutional provisions.

In two recent judgments, the Supreme Court ruled that in view of Article 247(7) of the Constitution, the superior courts could not exercise jurisdiction in Fata.

Article 247 (7) provides that neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a tribal area, unless the Parliament by law otherwise provides.

The high court’s bench ruled that on the one hand fundamental rights were guaranteed for the citizens across the country including Fata, whereas through Article 247 (7) the jurisdiction of superior courts was ousted from tribal areas thus these rights could not be enforced.

The bench observed that the provisions related to fundamental rights and Article 247 (7) of the Constitution were inconsistent to each other.

The bench had reserved its judgment in around 60 writ petitions on Apr 4 after hearing arguments from scores of lawyers and government representatives including some senior advocates who appeared as amicus curiae.

The bench had been determining whether it could exercise any jurisdiction in issues related to Fata in the presence of Article 247 (7) of the Constitution which has barred the superior courts from exercising any jurisdiction there.

The court had formulated several questions including: Whether the court has jurisdiction regarding federal and provincial employees working in Fata on deputation? Whether the court has jurisdiction in cases of federal employees working against key posts in Fata? Whether court has jurisdiction to entertain cases of employees recruited in Fata? Whether court has jurisdiction to entertain cases of illegal detentions by officers in Fata? Whether the court has jurisdiction to look into decisions made by the Fata tribunal in civil and criminal cases? Whether the court can exercise powers if cause of action arises/ occurs in settled area but proceedings carried out by political authority in tribal areas? And whether the court can exercise jurisdiction in contractual obligations arising between government functionaries of Fata and private persons?

“The findings of the bench on the questions formulated by it will be cleared once the court releases the detailed judgment,” said advocate Noor Alam Khan, who appeared in some of the petitions.

President of Fata Lawyers Forum Mohammad Ijaz Mohmand hailed the verdict and said the bench had pointed out that the articles of the constitution related to Fata were inconsistent and needed to be amended.

During course of proceedings, several lawyers had pointed out that under the Constitution, the residents of Fata were citizens of Pakistan and the fundamental rights enshrined in the Constitution were applicable to them but as the jurisdiction of superior courts was barred in tribal areas, therefore, these rights could not be enforced. They had also pointed out that Article 10-A was included in the Constitution through the Constitution (Eighteenth Amendment) Act in 2010 which guaranteed right to fair trial, but that right was not available to the inhabitants of Fata.

Additional attorney general for Pakistan Syed Attique Shah had contended before the court that even before the enactment of the 1973 Constitution, the tribal areas enjoyed special status.

He had said the articles identical to Article 247 of the Constitution were present in the previous constitutions of 1956 and 1962.

Barrister Zahoorul Haq, Qazi Mohammad Anwar, Abdul Lateef Afridi, Abdul Samad Khan, Imtiaz Ali, Wali Khan Afridi and Tariq Afridi were amicus curiae in the case, while additional advocate general Waqar Ahmad, Ghulam Nabi Khan, Ijaz Anwar, Shumail Ahmad Butt, Hashim Raza and Mian Mohibullah Kakakhel represented petitioners totaling 60 as lawyers.