A full bench of the Peshawar High Court on April 7 delivered an important judgment related to issues concerning the Federally Administered Tribal Areas (Fata). A few days ago the court released its detailed judgment wherein the bench had given its findings on those issues, which were raised in around 60 writ petitions. The five-member bench comprised then PHC chief justice Mian Fasihul Mulk (now retired), the present Chief Justice, Mazhar Alam Miankhel (then senior puisne judge), Justice Yahya Afridi, Justice Qaiser Rasheed and Justice Manzoor Hussain.

The bench had formulated several points related to Fata and requested senior lawyers to appear as amicus curiae and assist the court about its jurisdiction related to it. Those points included federal and provincial employees working in Fata on deputation; federal government employees posted in Fata; employees recruited for Fata; illegal detentions by officers in Fata; decisions of tribunals in civil and criminal cases; the cause of action accrued in the settled area but proceedings carried out by the political authorities; if the cause of action has arisen in Fata between persons belonging to the settled area; and contractual obligations arising in Fata between government functionaries and private persons.

Arguments were made on those points especially regarding barring the superior courts from exercising any jurisdiction in Fata under Article 247 (7) of the Constitution. The bench gave its findings on the said points and most importantly it make an advice to the Parliament through Federation for making suitable amendments to Article 247 (7) of the Constitution so that people of Fata could invoke the jurisdiction of the high court or the Supreme Court in case of infringement of their fundamental rights, which are though available to them under the Constitution being citizens of Pakistan but cannot be available because of the bar contained in Article 247 (7).

The judgment was authored by Chief Justice Mian Fasihul Mulk and endorsed by other bench members. However, Justice Afridi (now senior puisne judge) has written an additional 27-page note. While the detailed judgment was covered in media the note has mostly been ignored. Justice Afridi endorsed the judgment except specific advice to the Parliament by the bench.

Justice Yahya Afridi observed that he shared the views recorded by the chief justice that all citizens, hailing from Fata being Pakistanis, have and are entitled to all the fundamental rights, as enshrined in the Constitution and that in the present legal disposition, despite the clear mandate and command of the Constitution, the same cannot be executed or enforced by them. “In conclusion, I am of the view that as far as the enunciation of this Court that the people of Fata lack the legal and judicial forum to ensure their fundamental rights to be enforced and executed in a meaningful manner, as is the command and spirit of the Constitution, is where the role of judiciary ought to end and what steps are to be taken by the executive and the Parliament to ensure that matter is remedied are matter of ‘policy’ and thus should be left to the wisdom and decision of the other two organs.”

“Any ‘advice’ with specific steps entailed therein renders the same to lose its significance and transforms into a ‘direction’ which if made to the parliament through the executive would be contrary to the spirit of our Constitution,” Justice Afridi added.

“The people of Fata have a peculiar historic, social and customary characteristic, which has been recognised in all administrative, constitutional and other legal instruments relating to the said area and thus warranting caution and restraint of this Court,” he observed. Furthermore, he added that the principles of trichotomy of power, enshrined in the Constitution, mandates that each organ of the state be allowed to function independently, without interference by the other two organs.

In the additional note, Justice Afridi has explained the legal system in Fata in its historical perspective. He observed that the President and parliament had various legal and constitutional options available to ensure that the fundamental rights of the people of Fata were made meaningful by being enforceable by a competent legal judicial forum.

Justice Afridi has discussed four options available to the President and parliament. He observed that appropriate amendments be introduced to Article 247 (7) of the Constitution, as has been recommended by his brother judges.

He suggested that the President may, while exercising his authority provided under the Constitution, order to cease whole or part of Fata to be tribal area, with such incidental and consequential provisions as appear to the President to be necessary and proper.

“Surely, this option would require the approval of the tribal jirga. It may be noted that in case this option is successfully carried out, the whole or part of tribal area would either have to merge in another province or lead to the creation of a separate province.”

Another option mentioned in the note is that parliament may extend the jurisdiction of any high court to matters related to Fata under Article 192 (5) of the Constitution. Presently, the Fata Tribunal, the last judicial forum available under the Frontier Crimes Regulation is headed by a retired bureaucrat.

Justice Afridi observed that amendments could be made to Section 55A of the FCR in accordance with recommendations of an earlier FATA Reforms Commission to the effect that the tribunal should be headed by a judge of the high court.

Legal experts believe that the findings and observations of the bench, including the additional note, were of important nature and the executive as well as parliament should pay heed to it.

Published in Dawn, May 19th, 2014