Ever since independence, Federally Administered Tribal Areas (FATA)have been governed under the Frontier Crimes Regulation, 1901. The Constitution of Islamic Republic of Pakistan, 1973 in its Articles 1(2)(c), 246 and 247 conferred special status on these areas. Parliament had no authority to make any law for these areas. The president was law-giver who could, by a regulation, extend any law made by the parliament, to these areas with such exceptions and modifications as might be necessary, keeping in view the socio-cultural peculiarities and political dynamics of these areas. The system so prevalent in FATA was an exception to philosophy of rule of law. Despite numerous efforts to bring in reforms for these neglected areas, no government could succeed since 1976.
The 25th Constitutional Amendment of 30th May,2018 set this controversy at rest once and for all. As a result, seven agencies and six frontier regions stood merged into Khyber Pakhtunkhwa. The omission of Article 247 from the constitution is, indeed, constitutionalism and legalism.
Before merger of FATA into Khyber Pakhtunkhwa, the president of Pakistan promulgated FATA Interim Governance Regulation on 29.05.2018 which repealed the FCR. It was, however, challenged before the honourable Peshawar High Court in Writ Petition No. 3098-P/2018 titled “Ali Azeem Afridi v. Federation of Pakistan”. Vide judgment dated 30.10.2018, FIGR was declared ultra vires the Constitution, to the extent, as reflected therein. The august Supreme Court of Pakistan upheld the said judgment vide judgment dated 16.01.2019 in C.P No. 24/2012 and C.P No. 737-P/2018. FIGR was declared ultra vires the provisions of Articles 4, 8, 10-A, 25 and 175 of the Constitution.
Board of Revenue, Government of Khyber Pakhtunkhwa issued Notification dated 19.07.2018 declaring such agencies and frontier regions as districts and sub-divisions of Khyber Pakhtunkhwa. The Government of Khyber Pakhtunkhwa further notified districts and sub-divisions as Sessions Divisions in compliance with the said judgment of the august supreme court.
The omission of Article 247 from the constitution is, indeed, constitutionalism and legalism
The net-results of the 25th Constitutional Amendment and the judgment of the august supreme court are:firstly, all existing federal laws in force in Khyber Pakhtunkhwa and all provincial laws became automatically applicable to the newly-established districts/merged areas; Secondly, laws to be made by the parliament or provincial assembly of Khyber Pakhtunkhwa will apply to these areas without any further regulatory formality; Thirdly, all forums established under FCR regime to adjudicate civil, criminal, family, rent and other matters have ceased to exist; Fourthly, the cases and matters pending before such forums (Deputy Commissioner FCR, Commissioners FCR and Tribunal FCR stood automatically transferred to the courts established under Civil Courts Ordinance, 1962, Criminal Procedure Code, Family Courts Act, 1964, rent laws and other statutes, that is to say, Civil Courts, Judicial Magistracy, District and Sessions Courts and High Court ; Fifthly, the procedural laws shall have retrospective effect in relation to all pending cases so stood transferred as aforesaid; Sixthly, as regards substantive law or custom creating any right, the same shall have effect in accordance with the provisions of section 6 of the General Clauses Act and Article 264 of the Constitution because FCR stood repealed by implication; Seventhly, in so far as status of custom/rewaj prevalent in the merged areas is concerned, the legality or constitutionality thereof is to be determined in the light of judgment dated 16.01.2019 of the august Supreme Court of Pakistan.
It has to be seen that even trial courts will be having the power to see whether any custom or usage having the force of law is or is not inconsistent with the fundamental rights guaranteed under the constitution. And if it is found that any such custom or usage is inconsistent therewith, it shall be liable to be declared as void and/or unenforceable, to that extent, within the contemplation of Article 8 of the constitution; Eighthly, the finding or report or decision of any jirga in such pending cases so transferred to the newly-established ordinary courts under the ordinary laws of the land shall have no legal footing; Ninthly, as regards other proceedings, the courts may proceed from the stage at which such cases were at the time they stood so transferred to them; and Tenthly, the courts shall follow CPC, Cr.PC, Family Courts Act and Qanoon-e-Shahadat Order as procedural laws and all other substantive laws having application in Pakistan and the Khyber Pakhtunkhwa.
The august supreme court has, vide judgment dated 15.10.2018 in human rights case No. 70778/2001(In the matter regarding required system in Tribal Areas after 25th Constitutional Amendment), been pleased to declare that PATA and FATA shall be governed by the constitutional provisions and the laws (provincial as well as federal) applicable in Khyber Pakhtunkhwa.
As judicial officers have never before been posted to these areas, therefore, this transition from a defunct system to a working system of ordinary law requires that the judicial officers posted to these areas need to be enlightened in relation to these aspects: a. Causes and reasons for the failure of the system established under FCR; b. Socio-cultural peculiarities of these areas; c.Political conditions and dynamics of these areas; and. Understanding of how to make this transition a success for implementation of system of laws (legal regime) in these areas for safe administration of justice and maintenance of peace.
To achieve this objective, Khyber Pakhtunkhwa Judicial Academy, Peshawar arranged an exhaustive programme (training course and workshop) from 5th March to 9th March 2018. Senior judges, bureaucrats, journalists, lawyers and other stakeholders participated therein. Judicial officers were given extensive briefing and training on these aspects. Thereafter, they have been dished out to their respective places of postings. Ordinary Courts are now very much in place in these seven districts since 11th March 2019. These newly-established courts in merged 7 districts are presided over by 7 district and sessions judges, 14 additional district and sessions judges and 7 senior civil judges-cum-judicial magistrates. Peshawar High Court will exercise its appellate, revisional and constitutional jurisdiction in these areas too.
Challenges in these areas include: proximity thereof to Afghanistan, being on eastern side of Durand Line from where chances of infiltration by evil forces are there but the armed forces of Pakistan have almost exterminated extremism and terrorism and more than 850 kilometres fencing has been completed so far; return and rehabilitation of internally displaced persons; treatment of underdevelopment in these areas through instituting health, education and job creation; status quo forces may oppose this system for vested interests; non-existence of policing system; absorption of levies into regular police and training of levies personnel to become able, efficient and working police force; and lack of infrastructure and logistics for newly established regular civil and criminal courts.
To be continued
The writer is an Islamabad-based lawyer and partner at UMR Practice
Published in Daily Times, March 20th 2019.