Despite clear directives given by the Supreme Court in a recent judgment that the people of erstwhile Federally Administered Tribal Areas should not be distinguished from inhabitants of other parts of the province, the provincial governor is acting otherwise.

A recent notification issued by principal secretary to the Khyber Pakhtunkhwa governor has given birth to different controversies. Through the notification on Feb 6 the governor has ordered formation of a four-member advisory board in relation to former Fata for making recommendations to the provincial government on wide-ranging issues.

Two important issues related to the formation of this advisory board are: How could the governor issue such a notification when he is no longer having any constitutional powers to issue directives regarding Fata; and, after the Supreme Court judgment delivered on Jan 16 why instead of enforcing the existing laws there the governor is still bent on introducing a different system of governance in tribal districts.

Through the Constitution (Twenty-fifth Amendment) Act, 2018, the seven tribal agencies and six frontier regions were merged with Khyber Pakhtunkhwa, and Article 247, through which those areas were governed in past, was omitted from the Constitution. Previously, the governor used to act as an agent of the President of Pakistan. However, after the omission of Article 247 the governor is no longer having those powers.

Like other areas of Khyber Pakhtunkhwa the executive authority in the merged tribal districts vests in the provincial government, including the chief minister and cabinet, under Article 129 of the Constitution.

A few days before the enactment of the Constitution (Twenty-fifth Amendment), 2018, the President of Pakistan had promulgated the Fata Interim Governance Regulation (FIGR) through which the colonial-era Frontier Crimes Regulation was repealed, but several judicial powers continued with administrative officers.

A bench of the Peshawar High Court comprising Chief Justice Waqar Ahmad Seth and Justice Ms Mussarat Hilali had on Oct 30, 2018, allowed a writ petition filed by Advocate Ali Azim Afridi and declared as unconstitutional several provisions of FIGR through which judicial powers were assigned to executive officers and council of elders.

The high court had given a month’s time to the provincial government for introducing regular judicial system in tribal districts. The court had ruled: “Mere existence of tribal society or a tribal culture does not by itself create a stumbling block in the way of enforcing ordinary procedure of criminal law or civil law, trial and detention, etc. which is enforceable in the entire country.”

The said judgment was challenged by the provincial government before the apex court, which upheld the verdict of the high court but instead of one month a period of six months was given to the government for introduction of regular judicial system in former Fata.

A Supreme Court bench headed by then chief justice Saqib Nisar had pronounced a joint judgment in the appeal filed by KP governor and a constitutional petition filed in 2012 by National Commission on the Status of Women (NCSW) through its chairperson. The NCSW had challenged the informal custom-driven parallel legal systems in the form of ‘council of elders’ exiting in tribal areas and some rural areas of the four provinces, and had requested the court to declare jirga/panchayats in the country as illegal and unconstitutional.

The apex court had ruled in clear terms that the operation of jirgas/panchayats, etc violates Pakistan’s international commitments under the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and Convention for Elimination of Discrimination Against Women which place a responsibility on the State of Pakistan to ensure that everyone has access to courts or tribunals, and they are treated equally before the law and in all stages of procedure in courts and tribunals.

“Jirgas/panchayats etc do not operate under the Constitution or any other law whatsoever to the extent that they attempt to adjudicate on civil or criminal matters; however, they may operate within the permissible limits of the law to the extent of acting as arbitration, mediation, negotiation or reconciliation forums between parties in a civil dispute who willingly consent to the same,” the bench had ruled.

While the court clearly states that a jirga could act in permissible limits of law to the extent of civil dispute, the notification of the governor regarding the advisory board also included criminal dispute resolution in the TORs (Terms of Reference). One of the TORs states: “To propose a comprehensive dispute resolution mechanism for resolving civil and criminal disputes in accordance with the local customs and traditions.”

About similar applicability of laws in tribal districts and other parts of the province the apex court had 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,” the apex court ruled.

The bench in its conclusion pronounced: “After the 25th Amendment, all the residents of the province of KPK 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 KPK and thus the application of the Fata Interim Regulation to one part of KPK 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.”

Advocate Ali Azim Afridi said that the KP governor had overstepped his powers while issuing the controversial notification. He said that he had already filed a contempt of court petition in the high court for non-implementation of the said judgment regarding Fata and the same would be heard on Feb 14.

He said that he had now also filed another application against the controversial notification of the governor. He pointed out that from the apex court judgment it was evident that parallel system of governance and different laws for different areas in the same province without any justiciable distinction were not permissible under the Constitution and the superior courts were strictly adhering to this principle.

The only legal option available with the government, he said, was to enforce the existing laws in erstwhile Fata like rest of the province at the earliest.

Published in Dawn, February 11th, 2019