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Pakistan: Law Passed Extending Jurisdiction of Supreme Court and Peshawar High Court to Federally Administered Tribal Areas (FATA)

(May 15, 2018) On April 13, 2018, Pakistan’s Senate (upper house of Parliament) passed a bill allowing the Federal government to extend the jurisdiction of the Supreme Court and the Peshawar High Court to the Federally Administered Tribal Areas (FATA). (Nadir Guramani, Senate Approves Bill to Extend Jurisdiction of Supreme Court, Peshawar High Court to Fata, DAWN.COM (Apr. 13, 2018).) Five days later, the President of Pakistan gave assent to the bill—the Supreme Court and High Court (Extension of Jurisdiction to Federally Administered Tribal Areas) Bill 2018—which had already passed the National Assembly (lower house of Parliament) in January 2018, and the Bill thereby became law. (Nadir Guramani, Bill Extending PHC, SC Jurisdiction to Fata Passed by National Assembly, DAWN (Jan. 12, 2018); Waseem Ahmad Shah, Extension of Courts’ Jurisdiction to Fata Still Depends on Govt, DAWN (Apr. 23, 2018).)

Background of the Law

The new Law is part of a FATA reform process started last year by the government to “bring the Federally Administered Tribal Areas (Fata) in[to] the mainstream” by merging the tribal region with the province of Khyber Pakhtunkhwa. (Tariq Ahmad, Pakistan: Federally Administered Tribal Areas to Be Merged with the Province of Khyber Pakhtunkhwa, GLOBAL LEGAL MONITOR (Mar. 16, 2017).) FATA is a constitutionally designated tribal region in northwest Pakistan that is made up of seven semiautonomous tribal agencies. The region has long faced significant security and governance challenges, including religious militancy, especially since the 9/11 attacks. (Carin Zissis & Jayshree Bajoria, Backgrounder: Pakistan’s Tribal Areas, COUNCIL ON FOREIGN RELATIONS (Oct. 26, 2007).) The federal government has been criticized by opposition parties for failing to introduce further reforms that would merge FATA with the province of Khyber Pakhtunkhwa. The government’s coalition partners, Jamiat Ulema-i-Islam-Fazl and the Pakhtunkhwa Milli Awami Party, have opposed and blocked the merger. (Abrar Saeed, Talks on FATA Reforms Hit Snag, THE NATION (May 8, 2018).)  

Provisions of the Law

Pakistan’s Constitution stipulates that “[n]either 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.” (CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN (1973, as amended up to Feb. 28, 2012), art. 247(7), National Assembly of Pakistan website (citation omitted).) The Constitution also provides that “[n]o court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.” (Id. art. 175(2).)

Sections 2 and 3 of the newly enacted Bill state as follows:

     2.          Extension of Jurisdiction of Supreme Court.- The Supreme Court of Pakistan shall have, in relation to the Federally Administered Tribal Areas, the same jurisdiction as it has in relation to the province of the Khyber Pakhtunkhwa.

     3.          Extension of Jurisdiction of High Court.- The Peshawar High Court shall have, in relation to the Federally Administered Tribal Areas, the same jurisdiction as it has in relation to the province of the Khyber Pakhtunkhwa. (Supreme Court and High Court (Extension of Jurisdiction to Federally Administered Tribal Areas) Bill 2018, §§ 2 & 3, Senate of Pakistan website.)

Section 1(2) of the Bill states that “[i]t shall come into force on such date or dates and in such Federally Administered Tribal Areas or part thereof, as the Federal Government may, by notification in the official gazette, determine from time to time.” (Id. § 1(2).)

Criticism of the Law

A leader of the Pakistan People’s Party (PPP), Senator Farhatullah Babar, has criticized the FATA Bill for failing to extend the Courts’ jurisdiction to the “entire Federally Administered Tribal Areas, not just villages and tehsils.” (Farhatullah Babar Seeks Amendments in FATA Bill, PAKISTAN TODAY (Jan. 23, 2018).) Moreover, Babar is concerned by the Bill’s provision that the “extension of [the] court’s jurisdiction will be contingent upon a government notification even after [the FATA Bill’s] enactment” and asserts that “[a]n official notification cannot supersede the will of parliament. . . . [P]arliament should not give its powers into the hands of the bureaucracy.” (Id.) Furthermore, FATA is still administered by a century-old British colonial-era law known as the Frontier Crimes Regulations (FCR), which is expected to cause complications if the Law is brought into force throughout or in parts of FATA because of civil and criminal provisions “including collective punishment clauses that allow for the punishment of an entire tribe or family for the crime of an individual.” (Ahmad, supra.) According to one Dawn news report,

[t]here are several oppressive provisions of the FCR which are in conflict with the fundamental rights enshrined in the Constitution. There is likelihood that the moment the Act is enforced in any part of Fata, different provisions of FCR will be challenged before the Peshawar High Court on the touchstone of fundamental rights provided in the Constitution. Presently, under the FCR the administrative officers, including political and assistant political agents, have also been serving as judicial officers. They have been conducting trials under the FCR as judicial magistrates. Such provisions are in conflict with Article 175 (3) of the Constitution, which in clear terms provides that the judiciary shall be separated from the executive. (Id.)