Jurisdiction in Fata: Top court seeks word from K-P advocate general

PHC suggests amending Constitution to give tribal people greater access to justice

ISLAMABAD: The Supreme Court on Friday took up the row over extending superior court jurisdiction to the Federally Administered Tribal Areas (Fata).

Seven month earlier in April 2014, the Peshawar High Court (PHC) had recommended that lawmakers introduce necessary amendments in the Constitution to give tribal people greater access to justice.

The tribal areas are governed by the colonial British ruler’s Frontier Crimes Regulation (FCR), which denies many fundamental rights to tribesmen.



The federation has moved the Supreme Court against PHC recommendation contending that “the high court cannot issue specific directives to parliament.”

The apex court has sought legal assistance of Khyber-Pakhtunkhwa Advocate General Latif Yousafzai over the extension of the jurisdiction of superior courts in Fata after making suitable amendments in the Constitution.

The three-judge bench of the apex court, headed by Chief Justice Nasirul Mulk took up on Friday the appeal of the federal government against the PHC’s April 7 verdict on court jurisdiction in the tribal areas.

The high court had observed that denial of fundamental rights of tribesmen, which were available to other citizens, had caused the tribal areas to become the most dangerous region. A five-member bench headed by the then PHC chief justice Mian Fasihul Mulk on April 7, had recommended the parliament to amend Article 247 (7) of the Constitution with regard to extending the jurisdiction of Supreme Court and high court in Fata.

The Article 247(7) reads: “neither the Supreme Court nor a high court shall exercise any jurisdiction under the Constitution in relation to a tribal area, unless Majlis-e-Shoora (Parliament) by law otherwise provides.”

The federal government later filed a petition through Attorney General for Pakistan (AGP) office under Article 185(3) of the constitution against PHC’s April 7 judgment.

Federation’s view

During the hearing on Friday, Deputy Attorney General Sohail Mahmood contended that the high court was not authorised to issue specific directions to parliament through federation for making suitable amendments in the constitution.

“The impugned judgment is against the principle of trichotomy of powers between the judiciary, parliament and executive,” he said in his arguments.

The counsel stated that the appropriate forum for amendment in Article 247 (7) of the constitution is parliament and not the high court.

He further stated that a court has only such jurisdiction as is conferred on it by the constitution or statute law, but in the instant case, the jurisdiction of the high court is specifically barred, therefore this judgment is without jurisdiction.

Similarly, the government in its appeal also objected that it has been condemned unheard and the high court has not given an opportunity of hearing to it. The impugned judgment is therefore, liable to be set aside.

The bench, however, told Mahmood that PHC did not direct the government to make any amendment in Article 247 (7), but has just asked to put this matter before parliament. It also observed that there was no need to form a larger bench to hear this case. The bench adjourned the hearing for an indefinite period.

Published in The Express Tribune, November 22^nd, 2014.