The Peshawar High Court a few days ago summoned scores of station house officers (SHOs) and investigation officers (IOs) in cases of ‘missing persons’ as despite registration of FIRs in several cases there is no progress so far to trace the whereabouts of these persons.
Peshawar High Court Chief Justice Waqar Ahmad Seth has directed in several habeas corpus petitions filed by relatives of ‘missing persons’ that the SHOs of police station concerned and the IOs should appear on Sept 2 and explain their positions as to why they had failed in resolving their respective cases.
During the last couple of years, cases were registered in several police stations across the province on the direction of the high court and Commission of Inquiry on Enforced Disappearances on complaints of relatives of ‘missing persons’. However, the registration of FIRs did not serve any purpose as the police failed in successfully investigating these cases.
Apart from cases of several dozens of ‘missing person’ the court will also hear on Sept 2 important writ petitions related to the functioning of internment centres in erstwhile Fata and Pata.
One of the most important petitions is against two legislations of Khyber Pakhtunkhwa Assembly through which protection was given to laws in vogue in the former tribal areas including the two regulations through which internment centres were established in those areas.
That petition is filed by Advocate Shabbir Hussain Gigyani, who contends that these two legislations were in violation of Constitution of Pakistan and several judgments of superior courts. He has requested the high court to declare as null and void the two Acts – KP Continuation of Laws in Erstwhile PATA Act 2018 and KP Continuation of Laws in Erstwhile FATA Act, 2019 -- wherein all the laws, regulations, rules, notifications including the Action (in aid of civil power) Regulation, 2011, applicable in former Fata and Pata have been continued and remained in force.
He also prays the court to declare as unconstitutional the internment centres established under the Action (in aid of civil power) Regulation (AACPR) 2011 for Fata and Pata and to direct the government to hand over all the internees to the respective courts of competent jurisdiction for their trial as per law.
It is now a challenging task for the newly-appointed Khyber Pakhtunkhwa advocate general, Shumail Ahmad Butt, and his legal team to defend these laws especially in the presence of some judgments of the superior courts, which provide for uniform system of laws in different areas.
The Constitution (Twenty-Fifth Amendment) Act, 2018, was enacted in May 2018 and through it the erstwhile Fata and Pata were merged into the province. That Act omitted article 247 of the Constitution through which different status was given to Fata and Pata than rest of the country.
One major flaw on part of the then government was that in the said Act no ‘saving clause’ was included for giving protection to the existing laws in the then Fata and Pata including the laws related to internment centres, the Fata Interim Governance Regulation (FIGR) and Pata Shariah Nizam-i-Adl Regulation.
To give legal protection to laws in practice in ex-Pata, 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 especially Action (in aid of civil power) Regulation, 2011, for Pata.
Subsequently, 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 believe that it would be a tough job to defend the regulations dealing with internment centres before the high court as apparently the regulations are in conflict with provisions of the Constitution guaranteeing fundamental rights.
Under the now omitted Article 247 of the Constitution, no law of Parliament or the provincial assembly was applicable to those areas unless the president issued separate notification for extension of a particular law to Fata and Governor of the province issue 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 the then president, Asif Ali Zardari, had on Jun 23, 2011, promulgated the two regulations – Action (in aid of civil power) Regulation 2011 for Fata and Pata.
Following the merger of Fata and Pata into KP province, an important judgment was delivered by the Supreme Court on Jan 16, 2019. A bench of the apex court headed by the then chief justice, Mian Saqib Nisar, had dismissed a civil petition filed by Khyber Pakhtunkhwa 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 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.
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 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.”
Published in Dawn, August 19th, 2019