The Supreme Court on Jan 16 dismissed a civil petition filed by Khyber Pakhtunkhwa government and declared the Federally Administered Tribal Areas (Fata) Interim Governance Regulation, 2018, in conflict with several provisions of the Constitution of Pakistan.

The petition was filed by the provincial government against a judgment of Peshawar High Court delivered on Oct 10. 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 Fata Interim Governance Regulation (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.

The Supreme Court bench, headed by then chief justice Mian Saqib Nisar, upheld the verdict of the high court and declared the entire FIGR ultra vires to the Constitution. The apex court has now given six months’ time to the government for setting up a uniform system of courts of ordinary jurisdiction in entire Khyber Pakhtunkhwa.

“Whether they be residents of Fata on the 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 KP 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 KP and thus the application of the Fata Interim Regulation to one part of KP 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.

From the conclusion of the apex court in the recent judgment it is evident that parallel system of governance and different laws for different areas in the same province without any justifiable distinction are not permissible under the Constitution and the superior courts are strictly adhering to this principle.

Seven months down the road since the enactment of the Constitution (Twenty-fifth Amendment) Act, 2018, on May 31, the situation is still murky about the extension of two vital institutions, Judiciary and Police, to the erstwhile Fata.

A recent meeting chaired by Prime Minister Imran Khan on Dec 31 set timelines for different steps to be taken for the complete implementation of merger of Fata with Khyber Pakhtunkhwa.

The said meeting assigned the task to KP law minister, chief secretary and finance secretary for the establishment of courts in erstwhile Fata. It set a timeframe of one year for this task. However, after the judgment of the apex court, the government has now to complete this task within six months.

Last year, the high court had communicated to the provincial government that it would require 52 judicial officers for functioning of regular courts in the seven tribal districts, including seven district and sessions judges, 14 additional district and sessions judges, seven senior civil judges and 24 civil judges cum judicial magistrates.

Interestingly, instead of setting up police stations and assigning duties to the KP police department at the earliest, the meeting decided that the police would move inside erstwhile Fata in a sequential manner, within a year. This task has been assigned to the KP Inspector General of Police in consultation with secretary home and tribal affairs department.

Similarly, it was decided that within three months 2,200 vacant posts of Levies should be filled through recruitment. These recruitments would be made by secretary States and Frontier Regions in consultation with KP IGP. A timeframe of six months has been set for training of Levies on police standards.

Keeping in view the latest SC judgment, it will be difficult for the government to defend the functioning of parallel law enforcing forces in the shape of police and Levies in the same province. It is clear that the regular courts could not function in isolation and extension of other institutions of criminal justice system especially police to former Fata is of equal importance.

The Khyber Pakhtunkhwa Police Act, 2017, was enacted amid much publicity by the KP government. This Act is applicable throughout the province and under section 139 this Act has overriding effect on any other law in the province on the subject.

With the merger of erstwhile Fata with KP, the Police Act is now applicable to those tribal areas. Experts believe that the Levies should be integrated into the police at the earliest and instead of recruiting 2,200 Levies personnel the same should be integrated into the police so that they should be under the command of IGP.

A question arises when the Police Act and related rules are not applicable to Levies personnel then how could they be imparted proper training in the police institutions as they would not be accountable to the police.

The KP police department has a Police Training College at Hangu with the capacity of training 2,000 persons. Moreover, it has five other training schools at Mansehra, Kohat, Swabi, Swat and Nowshera.

Now under the law after the merger of tribal areas into KP, it is the responsibility of police department to perform policing functions there. Presently, in Malakand, having status of a district and once part of former Pata, the Levies have been performing police functions under the PATA Levies Force Regulation, 2012.

Assigning policing functions to Levies in parts of former Fata would give rise to legal questions. Legal experts believe that the government should avoid this step as it might result in a legal challenge wherein the issue of performance of policing by Levies force in Malakand would also surface.

Published in Dawn, January 21st, 2019