Struck down: Top court annuls PHC order

Parliament was told to amend Constitution to extend the jurisdiction of courts to FATA.

ISLAMABAD:

The top court has set aside the Peshawar High Court’s (PHC) order that recommended parliament should amend the Constitution and extend the jurisdiction of Supreme Court and high courts to the Federally Administered Tribal Areas (Fata).

A three-judge bench of the apex court headed by chief justice Nasir ul Mulk issued a short order on Thursday, accepting the federal government’s appeal against the order. The reasons of this judgment will be released later.

On April 7, a five-member bench of then PHC chief justice Mian Fasihul Mulk had recommended the amendments in Article 247(7) of the Constitution that 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 high court observed that denial of fundamental rights to tribesmen – available to other citizens in Pakistan – had caused the tribal areas to become the most dangerous region in the country.

During the hearing on Thursday, Deputy Attorney General (DAG) Sajid Ilyas Bhatti pointed out to the judges that Article 247(6) stated no law could be passed related to Fata without the will of the people of tribal areas. He added that the Fata people expressed their opinions through tribal jirgas.

Article 247(6) states: “The president may, at any time, by order, direct that the whole or any part of a tribal area shall cease to be tribal area, and such order may contain such incidental and consequential provisions as appear to the president to be necessary and proper; provided that before making any order under this clause, the president shall ascertain, in such manner as he considers appropriate, the views of the people of the tribal area concerned, as represented in the tribal jirga.”

The DAG contended the high court could not direct parliament to amend the Constitution regarding jurisdictions in FATA. “The judgment is against the principle of trichotomy of powers between the judiciary, parliament and executive,” he said.

Earlier, the senior law officer from Khyber-Pakhtunkhwa (K-P) had backed the PHC order. K-P Additional Advocate General Waqar Ahmad Khan believed the matter should be put before parliament. On January 5, the K-P assembly had passed a unanimous resolution, demanding the federal government extend the jurisdiction of the superior judiciary to Fata in order to fulfil the provision of basic requirements of justice in the area.

However, the bench agreed to the stance of the federal government and set aside the high court’s verdict.

The tribal areas are governed by the notorious British colonial law, Frontier Crimes Regu­lation, which denies many fundamental rights to tribesmen. On February 19, Senate’s Standing Committee on Law and Justice had approved a constitutional amendment seeking to extend the jurisdiction of courts to tribal areas.

Published in The Express Tribune, March 27^th, 2015.