As intense debate is in progress about future reforms related to the Federally Administered Tribal Areas, the federal government on Sept 15 introduced an important bill in the National Assembly for extending jurisdiction of the Supreme Court and Islamabad High Court to those areas.
The government claims that the bill – The Supreme Court and High Court (Extension of Jurisdiction to Federally Administered Tribal Areas) Bill, 2017 – is aimed at safeguarding the rights of the people of Fata and providing them proper administration of justice in accordance with the Constitution.
Since creation of Pakistan the issue of jurisdiction of superior courts continued to surface. This bill has also raised many eyebrows as the government has proposed extension of the jurisdiction of IHC instead of the Peshawar High Court (PHC) though these tribal areas are adjacent to Khyber Pakhtunkhwa.
The state of confusion through which the federal government has been passing on this issue is evident from the fact that in an earlier bill – Tribal Areas Rewaj Bill 2017 – which was tabled in the assembly on May 15, 2017 it had proposed to extend the jurisdiction of PHC to Fata.
Presently, most of the lawyers belonging to tribal areas have been practicing law in the settled districts of Khyber Pakhtunkhwa and the PHC. It would be more convenient for the people of Fata to move the PHC instead of the IHC.
“It is a matter of concern for us that the government has proposed the extension of jurisdiction of IHC instead of PHC to Fata. It is very discouraging,” said Advocate Zahir Shah Safi, an expert on issues related to Fata. He said that they had taken the first step of mainstreaming of Fata in the wrong direction.
While under Article 1 of the Constitution the tribal areas are part of Pakistan, these areas were discriminated with by the successive governments. Under Article 247 of the Constitution different legislative mechanisms are provided for the Fata and Provincially Administered Tribal Areas (Pata). Article 247 (3) of the Constitution provides that no Act of Parliament shall apply to Fata unless the President so directs; and no Act of Parliament or a Provincial Assembly shall apply to Pata unless the governor of that province in which the tribal area is situated, with the approval of the president, so directs.
One of the most atrocious sub-clause of Article 247 relates to barring the jurisdiction of superior courts in tribal areas. Article 247 (7) provides: “Neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area, unless Majlis-i-Shoora (Parliament) by law otherwise provides; provided that nothing in this clause shall affect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately before the commencing day.”
An act was passed by the National Assembly in 1973 called “the Supreme Court and High Court (Extension of Jurisdiction to certain Tribal Areas) Act, 1973” which was published in official gazette on Feb 9, 1973. Through that act the jurisdictions of SC and PHC were extended to Pata, including Chitral, Dir, Swat, Malakand Protected Area and Kalat.
There is no legal mechanism in place in tribal areas for enforcement of fundamental rights. The bar on jurisdiction of superior courts in Fata has aggravated the situation for the tribal people who are being treated as inferior human beings to that of the rest of the country.
Also, the Frontier Crimes Regulation (FCR) 1901 is widely believed to be a black law, but it still continues to be the prime law governing the Fata. The powers which could be exercised under this pro-bureaucracy law by the administrative officers in tribal areas are unmatched.
While the previous PPP government in the centre was claiming credit for certain reforms in FCR in 2011, time has proved that those changes in the law were cosmetic in nature.
The issue of superior courts’ jurisdiction in tribal areas remained under discussion in cases before the superior courts which are mostly hesitant to assume jurisdiction there in the light of the bar placed through Article 247 (7) of the Constitution.
At the time of establishment of the West Pakistan province through the Establishment of West Pakistan Act 1955, the territories of West Pakistan also included the tribal areas of Balochistan, the Punjab and the North-West Frontier and the States of Amb, Chitral, Dir and Swat. Initially, through that Act the High Court was empowered to exercise jurisdiction in relation to the whole of the province of West Pakistan. However, through the establishment of West Pakistan (Amendment) Act, 1955, amendment was made in the relevant section so as to exclude from the jurisdiction of the High Court the special areas, including the tribal areas.
Interestingly, in 1961 the special areas (Restoration of Jurisdiction) Order, 1961 was promulgated through which the High Court of West Pakistan was again empowered to exercise its jurisdiction in the special areas, which also included tribal areas. However, the jurisdiction of the High Court was again taken away by the Constitution of 1962.
This issue took another turn when the President’s Order No 29 of 1970 called as “Supreme Court and the High Court (Extension of Jurisdiction to Tribal Areas) Order 1970” was promulgated. Through that Order the appellate jurisdictions of the Supreme Court and Peshawar High Court was extended to tribal areas of Chitral, Dir, Swat, Kalam and Malakand Protected Areas, whereas other tribal areas (then called Centrally Administered Tribal Areas) had not been extended the said jurisdiction.
Experts believe that the government should pass the bill at the earliest, but with slight amendments so as to replace the IHC with the PHC.
Published in Dawn, September 18th, 2017