The Peshawar High Court judgment of Oct 17, whereby some of the laws applicable to former Federally Administered Tribal Areas (Fata) and Provincially Administered Tribal Areas (Pata) were declared as unconstitutional, has left the federal and Khyber Pakhtunkhwa government in difficult position.

The court has not only allowed a writ petition challenging the two laws enacted by the provincial government to provide protection to laws applicable to ex-Fata and Pata, it also declared a controversial ordinance, Action (In Aid of Civil Power) Ordinance 2019 as unconstitutional.

The bench comprising Chief Justice Waqar Ahmad Seth and Justice Mussarat Hilali pronounced a short order after completion of arguments in several writ petitions and the detailed judgment in these cases will be released later.

The court declared the functioning of internment centres in KP as unconstitutional and ordered that the KP inspector general of police should assume control of these cetres within three days after receiving the judgment. It was further ordered that a committee should be constituted which should scrutinise cases of all the internees and set free those against whom there were no cases, whereas the internees against whom cases were registered should be referred to regular courts.

The issues raised in these petitions had assumed importance as after the merger of former Fata and Pata into Khyber Pakhtunkhwa last year, the government continued to follow the laws that were in vogue in those tribal areas before merger. Most important of those laws are the Shariah Nizam-i-Adl Regulation, 2009, which has been in practice in ex-Pata since over a decade, and the two regulations-Action (in Aid of Civil Power) Regulation, 2011 for Fata and Pata.

The Shariah Nizam-i-Adl Regulation (SNAR) was promulgated by KP Governor in April 2009, providing for appointments of qazis (judicial officers) well versed in Islamic Shariah and restoration of the executive magistracy in the Malakand Division and Kohistan. This regulation was outcome of a peace deal signed between the provincial government and defunct Tehreek Nifaz-i-Shariat-i-Muhammadi (TNSM) for ending militancy in Swat and other parts of Pata.

The SNAR provides for two appellate forums, Darul Darul Qaza (Supreme Court bench) and Darul Qaza (high court bench) in Malakand Region.

Through the Constitution (Twenty-Fifth Amendment) Act, 2018, which was assented by the president on May 31, 2018, the former tribal areas were merged into Khyber Pakhtunkhwa. Despite the fact that no ‘saving clause’ was included in the said Act for protecting the existing laws in the merged areas of Fata and Pata, but still those laws remained operational there.

Previously, Articles 246 and 247 were two major articles dealing with former Fata and Pata. Article 246 explained the areas included in Fata and Pata whereas Article 247 explained the administrative and legislative mechanism in relation to those areas.

Through the constitutional amendment act, Article 247 was omitted. Similarly, in Article 246 certain changes were made through the constitutional amendment so as to merge Fata and Pata into KP and certain tribal areas with Baluchistan.

Following the merger of tribal areas, one of the most important developments was a judgment of the Supreme Court delivered on Jan 16, 2019, through which a civil petition filed by the KP government was dismissed and Fata Interim Governance Regulation, 2018, was declared in conflict with several provisions of the Constitution.

The said petition was filed by the provincial government against a judgment of PHC delivered on Oct 30, 2018. The high court bench headed by Chief Justice Waqar Ahmad Seth, while allowing a petition filed by Advocate Ali Azim Afridi, had declared some of the provisions of the FIGR in conflict with the Constitution and had given a month’s time to the government to set up regular courts in the erstwhile Fata.

While the Supreme Court bench headed by then chief justice Mian Saqib Nisar had upheld the verdict of the high court, it declared the entire FIGR ultra vires to the Constitution.

The apex court in clear terms declared: “Whether they be residents of Fata on one hand or of Peshawar or Mardan, etc. on the other, they cannot be discriminated against and any classification between them despite being residents of the same province, with no obvious or reasonably deducible distinction between them, will be arbitrary and against the recognised principles of natural justice and the rule of law,” the apex court ruled.

“After the 25th Amendment, all the residents of the Province of KPK are similarly placed, there is no rational basis on which the people of FATA can be distinguished from the people of the rest of the province of KPK and thus the application of the FATA Interim Regulation to one part of KPK while the rest of the province enjoys the protection of the provincial laws is absolutely unjustified, grossly discriminatory and in contravention of the fundamental right to equal protection,” the bench declared in its conclusion.

While there was no constitutional protection to the existing laws in former tribal areas, the KP government first enacted the KP Continuation of Laws in Erstwhile Pata Act 2018 in Dec 2018, which was assented by the governor on Jan 4, 2019, and subsequently, the KP Continuation of Laws in Erstwhile Fata Act in April 2019. Through these acts all the laws, regulations, rules, notifications including the Action (in aid of civil power) Regulation, 2011, applicable in former Fata and Pata had been continued and remained in force.

An advocate of the high court Shabir Hussain Gigyani in May this year filed a writ petition challenging the said two acts, praying the court to declare as unconstitutional the internment centres established under the Action (in Aid of Civil Power) Regulation (AACPR) 2011 for Fata and Pata and to direct the government to handover all the internees to the respective courts of competent jurisdiction for their trial as per law.

During pendency of the said petition, the provincial government promulgated on Aug 5 a controversial the controversial ordinance, Action (in Aid of Civil Power) Ordinance through which the scope of the powers assigned to the government and armed forces acting in aid of civil power were extended to entire province while earlier the same were available to them in Fata and Pata.

Advocate Gigyani filed another petition through which the controversial ordinance was also challenged.

The available legal course with the government is now to challenge the PHC judgment in the Supreme Court and to get interim relief through suspension of the judgment.

Experts believe that if the cases of internees detained in different centres were referred to regular courts, most of them would be acquitted due to lack of evidence. Under the AACPR, the Evidence Act (Qanoon-i-Shahadat) is not strictly applied and statements of relevant officers are admissible as evidence against an internee.

Published in Dawn, October 21st, 2019