Legislation for former Fata, Pata challenged in high court

Updated May 24, 2019

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Lawyer pleads PHC to declare internment centres unconstitutional. — Dawn/File
Lawyer pleads PHC to declare internment centres unconstitutional. — Dawn/File

PESHAWAR: A lawyer has moved the Peshawar High Court challenging the recent legislation meant to protect the laws, which were enforced in the erstwhile Federally Administered Tribal Areas and Provincially Administered Tribal Areas, including one governing internment centres.

In the petition, Shabbir Hussain Gigyani pleaded the court to strike down the KP Continuation of Laws in Erstwhile Pata Act, 2018, and KP Continuation of Laws in Erstwhile Fata Act, 2019, insisting the two laws violated the Constitution and the judgments of superior courts.

He said the legislations illegally kept all the laws, regulations, rules, notifications meant for the erstwhile Fata and Pata, including the Action (in aid of civil power) Regulation, 2011, intact.

Lawyer pleads PHC to declare internment centres unconstitutional

The petitioner prayed the court to declare unconstitutional the establishment of internment centres in Fata and Pata under the Action (in aid of civil power) Regulation (AACPR), 2011, and order the government to hand over all internees to the relevant courts for trial.

He also sought the court’s orders for stopping the respondents, including Khyber Pakhtunkhwa government from promulgation of any laws, rules, regulations, notifications or any other legal instrument, which discriminate the public of erstwhile Fata/Pata from rest of Khyber Pakhtunkhwa or in violation of the Constitutional and fundamental rights of the inhabitants of those areas.

The petitioner said through the Constitution (Twenty-Fifth Amendment) Act, 2018, the erstwhile Fata and Pata had been merged with Khyber Pakhtunkhwa, while Article 247 of the Constitution under which those areas were given different status to rest of the country was omitted.

He said after the omission of Article 247 and amendments to Article 246, the discriminatory laws in practice in those areas ceased to exist and that all federal and provincial laws applicable in Khyber Pakhtunkhwa were applied to the merged tribal districts.

The petitioner, who specialises in cases of internment and enforced disappearances, said in the past, the residents of former Fata were suppressed through discriminatory laws including the Frontier Crimes Regulation (FCR) and AACPR 2011.

He said initially, the government had promulgated the Fata Interim Governance Regulation, 2018, through which a parallel judicial system was launched, but the Peshawar High Court declared it in conflict with the Constitution on Oct 30, 2018.

The petitioner said through the two laws, the Khyber Pakhtunkhwa government had given protection to some unconstitutional laws, including the Action (in aid of civil power) Regulation.

He said on the principal of discrimination and on the touchstone of fundamental rights, the FIGR, 2018, had been declared ultra vires to the Constitution by the high court as well as the Supreme Court.

“All residents of KP are similarly placed, and there is no rational basis on which the people of Fata and Pata could be distinguished from the people of the rest of the province of KP and despite now being part of this province, areas of Fata and Pata cannot be subject to an entirely different mode of dispensation of justice from the rest of the province,” he said.

The petitioner said the internments continuing for many years fell under the definition of illegal detention, while non-production of such detainees before the relevant courts violated Section 61 of Code of Criminal Procedure and Article 10 of the Constitution.

Published in Dawn, May 24th, 2019