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Article 1(c) of the Constitution of the Islamic Republic of Pakistan defines the Federally Administered Tribal Areas (FATA) as part of the Republic’s territories in addition to the four provinces of Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh and the Islamabad Capital Territory. Chapter 1 (Articles 8-28) of the Constitution guarantees Fundamental Rights to the citizens in the territories of the Republic. The Fundamental Rights, inter alia, include the security of person, safeguard as to arrest and detention, the right to fair trial, freedom of movement, assembly, association, speech, and equality of citizens. Article 8 of the Constitution provides that any law, custom or usage having the force of law, which is inconsistent or in derogation of the Fundamental Rights is void.
In contrast to the spirit of the Constitution and the Fundamental Rights contained therein, there exists no judicial forum for the enforcement of Fundamental Rights in FATA. Justice in FATA is dispensed through a quasi-judicial system in accordance with the provisions of a colonial law known as the Frontier Crimes Regulation (FCR) 1901. The FCR concentrates all judicial and executive powers in the office of the Political Agent/Deputy Commissioner, a senior civil servant of the federal government. In contravention of due process of law, citizens in FATA have no right to fair trial and have little safeguard against arbitrary arrest and detention.
Because of its geographical proximity to Khyber Pakhtunkhwa, , the people of FATA often approach the Peshawar High Court (PHC) for the enforcement of their Fundamental Rights, despite the bar of jurisdiction of the High Courts under Article 247(7) of the Constitution. Several petitions relating to FATA were filed in the PHC during 2013 and 2014, related to four broad categories: 1) illegal detentions by political agents in FATA, 2) service matters of the employees working in FATA, 3) contract matters, and 4) Fundamental Rights. In order to address these petitions in accordance with constitutional provisions, the PHC constituted a “larger bench” for the hearings. The Court also appointed seven eminent amicus curiae to assist it on eight specific points.
The Court, after hearing arguments from counsels for the parties and submissions of the amicus curiae, wherein all the previous judgments of the superior courts were exhaustively discussed (see annex for details), considered the matter and passed its judgment on April 7, 2014. The judgment highlights the contradictions in the enforcement of Fundamental Rights and safe administration of justice in FATA. The Court arrived at the conclusion that it has no jurisdiction in areas that constitute FATA except in relation to the terms and conditions of service of the civil servants, development contracts and detentions that violate Section 86-A of the Criminal Procedure Code of Pakistan.