THE president last month extended eight laws to the Federally Administered Tribal Areas (Fata). These laws include:Agricultural Produce and General Grading Act 1937; the Seed Act, 1976; Agricultural Pesticides Ordinance, 1971; Pakistan Environmental Protection Act 1997; Voluntary Social Welfare Agencies (Registration and Control) Ordinance, 1961; the Companies Ordinance, 1994 and the West Pakistan Muslim Personal Laws (Shariat) Act, 1962.
All these laws have already been in vogue in the settled districts. However, under the constitution a law enacted by the parliament is not applicable to Fata unless the president issues special order regarding its extension there. In past it has been observed that laws had been extended to Fata without any proper homework and setting up of the relevant bodies required under the law. Moreover, proper amendments have often not been made in the law while extending it to Fata so as to make it workable there.
For instance the extension of the Pakistan Environmental Protection Act (Pepa), 1997, to Fata is without any proper homework.
It took the federal government almost 15 years to extend this law to those areas. However, experts believe that there are several provisions of this law which could not be presently implemented without making amendments in it.
Under Pepa, several powers have been assigned to the high court concerned. Interestingly, the jurisdiction of the superior courts including the Supreme Court and the Peshawar High Court has so far not been extended to Fata. Article 247 of the Constitution places a bar on exercising any jurisdiction by the superior courts in Fata.
Appeal against any final order or sentence passed by an environmental tribunal could be made only before a high court. The relevant section of the Pepa states: “Any person aggrieved by any final order or by any sentence of the Environmental Tribunal passed under this Act may, within thirty days of communication of such order or sentence, prefer an appeal to the High Court.”
Furthermore, it is provided that an appeal should be heard by a bench of not less than two judges.
Similarly, the Pepa assigns wide powers to environmental magistrates, who should be a judicial magistrate of the first class especially empowered in this behalf by the high court. The environmental magistrate is empowered to deal with variety of cases including handling of hazardous substances like its generation, collection, transportation, treatment, etc; and regulation of motor vehicles.
Furthermore, an environmental tribunal consists of a chairperson, who is or has been, or is qualified for appointment as a judge of the high court to be appointed after consultation with the chief justice of the concerned high court and two members to be appointed by the federal government.
It is yet not clear how the federal government would tackle the issue of setting up of the environmental tribunal, whether separate tribunal would be set up for Fata or the existing tribunal in Khyber Pakhtunkhwa would be assigned additional powers.
Experts believe that when the jurisdiction of high court has not been extended to Fata how these provisions of the law would be implemented. They believe that it was necessary to amend the Pepa before its extension to Fata so as to provide the appellate powers to any other authority like the Fata Tribunal, which was set up after amendments were made in the Frontier Crimes Regulation (FCR) in 2011.
One of the lawyers dealing with cases in Fata pointed out that almost eight years ago the Juvenile Justice System Ordinance (JJSO) 2000 was extended to Fata, but it is yet to be implemented there.
That ordinance was extended to Fata and Pata after campaign by civil society groups including NGOs dealing with child rights.
The JJSO was first extended to Pata by the governor with prior approval of the president on Oct 20, 2004; and later on, the president extended the law to Fata through a notification on Nov 6, 2004.
Not a single step has so far been taken by the government for implementing the law in the Fata. No juvenile courts are available in Fata where these children could be produced. The trials are conducted by the administration under the provisions of the FCR. That ordinance was also extended to Fata without prior homework as different institutional mechanisms available in the law are not in place in tribal areas.
While the said ordinance provides for an important role of the probation department and probation officers, there is no concept of the said department in Fata. The ordinance has made it binding that no joint trial of a juvenile offender should be conducted along with an adult, but in tribal areas such practices continue despite the extension of the law.
It would be appropriate for the government to deviate from its past track record and fully implement these laws at the earliest, otherwise there would be no use of extension of laws to Fata.