PESHAWAR: The much-publicised adoption of the bill proposing extension of jurisdiction of superior courts to the Federally Administered Tribal Areas (Fata) by the National Assembly has raised many eyebrows, with legal experts expressing scepticism about the government’s intentions.
The bill titled “The Supreme Court and High Court (Extension of Jurisdiction to Federally Administered Tribal Areas) Bill 2018” now awaits approval by the Senate and subsequent assent by the president to become an act of parliament.
This future law, however, is not enforceable with immediate effect because contrary to the prevalent practice its implementation will be subject to notification by the federal government, which could be different for different tribal areas.
Amid euphoria over the passage of the bill, legal experts from the tribal areas have pointed out several flaws in the law, observing that it will be up to the federal government to notify the enforcement of the law in the tribal areas.
At the same time, without amending the colonial-era Frontier Crimes Regulation (FCR), 1901, extension of the superior courts’ jurisdiction will create legal complications, as the FCR provides a separate hierarchy of judicial forums contrary to those existing in Khyber Pakhtunkhwa and other provinces.
According to official sources, earlier it was planned that a sunset clause will be included in the bill about abolition of the FCR, but that provision has not been incorporated into the future law.
Experts say without changing FCR extension of superior courts’ jurisdiction to tribal areas will create problems
“It appears to be a fraud with the people of tribal areas. Extending the jurisdiction of superior courts to the tribal areas without setting up matching judicial structure will be a joke with people,” said a former MNA and senior lawyer, Abdul Lateef Afridi.
He pointed out that without extension of the Civil Court Ordinance 1962 to Fata the judicial structure there would remain unchanged.
Presently, under the FCR, the political agents or assistant political agents act as trial court judges or judicial officers and criminal and civil cases are decided by them in the light of jirga findings, he said.
Mr Afridi said that under the FCR an appeal against the judgement of a political agent was made to the authorised commissioner or additional commissioner. The third and final judicial forum under the FCR was that of the three-member Fata Tribunal, which is empowered to hear revision petitions originating from the order of the appellate forum (commissioners).
The bill’s Section 1(2) says: “It shall come into force on such date or dates in such Federally Administered Tribal Areas or part thereof, as the federal government may, by notification in the official gazette, determine from time to time.”
“This provision clearly shows that despite enactment of this law the inhabitants of Fata will be depending on the whims of the federal government for its enforcement,” said Ijaz Mohmand, the central president of the Fata Lawyers Forum.
He said the future law empowered the authorities to enforce it in some parts of the tribal areas, or the whole of it, and that the government could take years to issue the relevant notification for its enforcement.
While under Article 1 of the Constitution the Fata and Pata (the Provincially Administered Tribal Areas) are part of Pakistan, through Articles 246 and 247 these areas have been assigned different statuses. Normal laws of the land are not applicable there unless the president extends the same to Fata through separate notification, and the governor of the province extends them to Pata after taking approval from the president.
Mr Afridi, who is also a former president of the Peshawar High Court Bar Association, said that many people had expected the tribal areas to be turned into a provincial territory instead of a federal one.
He said that once the law became an act of parliament he would challenge the black law of FCR in the Peshawar High Court (PHC).
Advocate Mohmand shared similar views and said the PHC would exercise its jurisdiction in Fata under Article 199 of the Constitution and inhabitants of Fata would move the superior courts on the touchstone of the fundamental rights as enshrined in the Constitution.
“We have been struggling for bringing prime changes in the Constitution and other laws related to Fata, but in the present bill other laws and the Constitution have been ignored altogether,” he said and added that the existing judicial set-up would remain the same, including trial courts and appellate forum.
Mr Afridi pointed out that just like Fata, the superior courts initially did not have jurisdiction over Pata. However, through the Supreme Court and High Court (Extension of Jurisdiction to Certain Tribal Areas) Act, 1973, which was published in the official gazette on Feb 9, 1973, the jurisdiction of SC and PHC was extended to Pata, including Chitral, Dir, Swat, Malakand Protected Area and Kalat.
He pointed out that the said act was enforced in Pata with immediate effect, whereas the federal government had to issue a separate notification or notifications for enforcement of the future law.
He said that it would be strange if to certain tribal areas the jurisdiction of the superior courts was extended but to others it was not.
Published in Dawn, January 15th, 2018