View from the courtroom: Legal issues related to detentions in ex-Fata continue to surface

Updated May 20, 2019

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These issues include the continuous detention of hundreds of internees in different notified internment centres. — AFP/File
These issues include the continuous detention of hundreds of internees in different notified internment centres. — AFP/File

With the merger of Federally Administered Tribal Areas into Khyber Pakhtunkhwa last year, the legal issues related to detentions in those tribal areas have now been in focus. These issues include the continuous detention of hundreds of internees in different notified internment centres in former Fata and Provincially Administered Tribal Areas (Pata) as well as the cases of those suspects who had remained in custody of security forces for many years and were subsequently handed over to the administration in respective tribal districts.

A bench of the Peshawar High Court on May 15 disposed of 14 writ petitions challenging continuous detentions of different suspects in internment centres. These petitions were disposed of with the direction to provide visitation rights to the relatives of these detainees.

The decision was made by a bench of PHC Chief Justice Waqar Ahmad Seth and Justice Abdul Shakoor in the light of a recent enactment of Khyber Pakhtunkhwa Assembly through which protection was given to a law under which internment centres were set up in different tribal districts.

However, the bench observed that these petitioners could separately file petitions challenging the recent enactment as well as the Action (in aid of civil power) Regulation, 2011, for Fata, under which the internment centres were set up.

When the Constitution (Twenty-Fifth Amendment) Act, 2018, was enacted in May last year and erstwhile Fata and Pata were merged into Khyber Pakhtunkhwa, one major lapse on part of government was that no “saving clause” was included in the said Act for providing protection to existing laws in Fata and Pata.

Due to same reason the KP government had to enact two laws for giving legal protection to the laws in vogue in former Fata and Pata as objections were raised on the continuation of said laws in those areas after the merger.

The provincial assembly on Dec 28, 2018, passed the KP Continuation of Laws in the Erstwhile Provincially Administered Tribal Areas Act, 2018, which was given assent by the governor on Jan 4. The said law provides protection to laws in Pata specially Action (in aid of civil power) Regulation, 2011, for Pata.

Recently, the provincial assembly passed the KP Continuation of Laws in Erstwhile Fata Areas, 2019, through which the laws introduced in former Fata under Article 247 of the Constitution were given protection including the Action (in aid of civil power) Regulation, 2011, for Fata.

Despite the passage of these two laws, experts are skeptical about the fate of those laws in vogue in the merged tribal districts and ex-Pata, which are apparently in conflict with provisions of Constitution of Pakistan guaranteeing fundamental rights.

Any legal justification of the two regulations under which the internment centres have been set up is specially difficult in present circumstances when Article 247 of the Constitution has already been omitted through the Constitution (Twenty-Fifth Amendment) Act.

Through Article 247 different status was given to Fata and Pata and no law of Parliament or the provincial assembly was applicable to those areas unless the President of Pakistan issues separate notification for extension of a particular law to Fata and governor of the province issues notification with prior approval of the President for Pata.

Moreover, the President was empowered to issue special regulation for those areas. Under the same powers then President of Pakistan Asif Ali Zardari had on June 23, 2011, promulgated the two regulations – Action (in aid of civil power) Regulation, 2011, for Fata and Pata.

As hundreds of suspected militants were arrested in different military operations, especially in Swat, and they were in a legal limbo, therefore, to legalise those detentions these regulations were given retrospective effect from Feb 1, 2008.

Keeping in view different judgments of the superior courts, the government is barred from introducing different laws for different areas in the same province.

The Supreme Court on Jan 16 dismissed a civil petition filed by the KP government and had declared the Fata Interim Governance Regulation, 2018, in conflict with several provisions of the Constitution.

The petition was filed by the provincial government against a judgment of Peshawar High Court delivered on Oct 30. The high court bench, 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 time to the government to set up regular courts in the erstwhile Fata.

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 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.”

Another important issue is that of the imprisoned suspected militants who had remained in custody of security forces and were later on handed over to the administration. These suspects are in different prisons on almost same charges of raising arms and staging war against the state.

Recently, the Khyber district and sessions judge granted bail to a petitioner named Gul Deenar who had remained in detention without trial for 10 years. He was taken into custody in 2009 by the security forces in Khyber Agency (now Khyber district) and had been kept incommunicado for many years. Last year, he was handed over to the administration and sent to Peshawar Central Prison.

Legal experts dealing with these cases believe that most of these suspects would be ultimately acquitted as they had not been charged in any specific case and instead general allegations were levelled against them without putting forward any evidence.

Published in Dawn, May 20th, 2019