The Khyber Pakhtunkhwa governor on Jan 4 gave assent to the KP Continuation of Laws in the Erstwhile Provincially Administered Tribal Areas Act, 2018, so as to provide legal cover to laws applicable to those areas in the wake of their merger into the province.

The said Act was passed by the Khyber Pakhtunkhwa Assembly on Dec 28, 2018. After the erstwhile Federally Administered Tribal Areas and Provincially Administered Tribal Areas (Pata) were merged into Khyber Pakhtunkhwa province through the Constitution (Twenty- fifth Amendment) Act, 2018, questions were raised regarding the continuation of different laws in those areas, specially the Fata Interim Governance Regulation, 2018, Shariah Nizam-i-Adl Regulation, 2009, and the two regulations, Action (in aid of civil power) Regulation, 2011 for Fata and Pata.

Through this Act the provincial government has given protection to the laws in practice in former Pata, including the Action (in aid of civil power) Regulation for Pata and Shariah Nizam-i-Adl Regulation (SNAR), 2009.

An important development which took place after the enactment of this Act was a judgment by the Supreme Court on Jan 16 through which the Fata Interim Governance Regulation (FIGR) was declared unconstitutional. The Supreme Court’s bench, headed by then chief justice Mian Saqib Nisar, dismissed a civil petition filed by the provincial government against a judgment of the Peshawar High Court delivered on Oct 10.

The PHC had declared some of the provisions of FIGR in conflict with the Constitution of Pakistan and ordered the provincial government to set up regular judicial system in erstwhile Fata within a month. Now the apex court has given six-month time to the government for that purpose.

Legal experts believe that on the touchstone of this judgment of the Supreme Court as well as some previous judgments of the superior courts it would be difficult for the provincial government to defend the present Act if challenged before the superior courts.

They believe that on the same grounds the PHC had earlier in 1990 declared the former Pata Regulations, 1975 as unconstitutional and the Supreme Court had upheld that judgment in 1994. The superior courts in these judgments had clearly stated that there should not be different laws for different areas in the same province.

The Supreme Court in its recent judgment has ruled: “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.”

“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 had declared.

The bench had observed that after inclusion of Fata in the province of Khyber Pakhtunkhwa, the court was now faced with the situation where these newly-added areas to the province despite being part of the province were subject to an entirely different mode of dispensation of justice from rest of the province, making a prima facie case for discrimination in violation of Article 25 of the Constitution, which guaranteed equality of all persons before the law as well as Article 4 that guaranteed the right to enjoy the protection of law and to be treated in accordance with law.

Some of the experts believe that in the Constitution (Twenty-fifth Amendment) Act, 2018, no ‘saving clause’ was included for giving protection to the existing laws in Fata and Pata and thus through an Act of the provincial assembly the same protection could not be given. They believe that it was discriminatory that different laws would be applicable to inhabitants of erstwhile Pata compared to other settled districts in the province in particular and in the country in general.

Certain provisions of the Shariah Nizam-i-Adl Regulation (SNAR), 2009, dealing with the creation of executive magistracy in erstwhile Pata, have already been declared unconstitutional by a bench of the PHC on April 29, 2015. The appeals of the provincial government have been pending before the Supreme Court.

The high court in that judgment had ruled: “Paragraph 5(e), 7, 19(2), Schedule III and other relevant paras in respect of function of Executive Magistrate of Shariah Nizam-i-Adl Regulation 2009, (NWFP Regulation No. 01 of 2009), Notification No. SO(Fata)/HD/1- 60/NAR/09 dated 02.10.2009 and other Notifications entrusting the Executive Officers with Judicial powers of any nature are hereby struck down being ultra vires of the Constitution.”

The court had given up to six-month time to the government to make suitable amendments in the said Regulation so as to bring it in conformity with the Constitution. The SNAR was promulgated by the governor in April 2009 when militants were calling the shots in most parts of Pata, including Swat, Buner and Shangla.

Prior to the enactment of the Constitution (Twenty-fifth Amendment) Act, the parliament and the KP legislature had no direct lawmaking powers over the Pata as under the now omitted Article 247 of the Constitution normal laws were not applicable to these areas unless the governor with prior approval of the President issues special orders in that regard.

Swat, Chitral and Dir, the important areas in Pata, were former states of British India governed by their own rulers. These states had acceded to Pakistan and later on merged with the then province of West Pakistan through the WP Regulation I of 1969. Later, with the dissolution of West Pakistan province with effect from July 1, 1970, these states became part of Khyber Pakhtunkhwa (then NWFP).

Experts believe that the government should decide the fate of existing laws in erstwhile Pata at the earliest before they are challenged in superior courts, which might result in a legal crisis.

Published in Dawn, January 28th, 2019