ISLAMABAD  -   In a landmark decision, the Supreme Court on Wednesday declared FATA Interim Regulation ultra vires of the Constitution and granted the Khyber Pakhtunkhwa government six months to create a uniform system of courts of ordinary jurisdiction in the province.

Observing that discrimination cannot be justified, the top court ruled the FATA Interim Regulation is declared as ultra vires on the touchstone of Articles 4, 8, 25, 175 and 203 of the Constitution of Pakistan.

“The Government of KP is granted six months from the date of announcement of this judgment for the development of infrastructure to take steps to spread a uniform system of courts of ordinary jurisdiction in KP, mandating the local law enforcement agencies to ensure that the rule of law is observed by reducing jirgas/panchayats etc. to arbitration forums which may be approached voluntarily by local residents to the extent of civil disputes only,” the top court further ruled. 

The top court gave this ruling on the petition filed by KP’s government regarding FATA Interim Governance Regulation 2018.

The 33-page judgment authored by Chief Justice Mian Saqib Nisar also concluded that after the 25th Amendment, all the residents of the Province of KP are similarly placed and there is no rational basis on which the people of FATA can be distinguished from the people of the rest of the province of KPK.

“Thus the application of the FATA Interim Regulation to one part of KPK while the rest of the province enjoys the protection of the provincial laws is absolutely unjustified, grossly discriminatory and in contravention of the fundamental right to equal protection,” the judgment concluded.

“Whether they be residents of FATA on one hand or of Peshawar or Mardan, etc. on the other, they cannot be discriminated against and any classification between them despite being residents of the same province, with no obvious or reasonably deducible distinction between them, will be arbitrary and against the recognized principles of natural justice and the rule of law,” the judgment observed. 

The FATA Interim Regulation was promulgated by the former President Mr. Mamnoon Hussain on May 29 last year after which Article 247(7) of the Constitution was omitted vide the 25th Amendment.

The top court observed that the new areas despite being part of KP through amendment are subject to an entirely different mode of dispensation of justice from the rest of the Province making a prima facie case for discrimination in violation of Article 25 of the Constitution which guarantees equality of all persons before the law.

“If even today, the legislature and the executive fall shy of their duty to provide these people with the same system of administration of justice as in place in the rest of the country then as guardians of the fundamental rights of the citizens of Pakistan, this Court must step in and direct that adequate measures be taken on ground level to ensure that not only are courts of law put in place, but the faith, trust and belief of these people is built up with regards to these courts and enough awareness is spread so that they approach the doors of justice as frequently and as confidently as any other resident of KPK,” the judgment further observed. 

33-page judgment authored by Chief Justice Mian Saqib Nisar also gave observations on separate petitions filed by  the National Commission on the Status of Women (NCSW) jirgas, panchayats etc against women.

It is observed that the operation of jirgas/panchayats etc. violates Pakistan’s international commitments under the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) which place a responsibility on the State of Pakistan to ensure that everyone has access to courts or tribunals, are treated equally before the law and in all stages of procedure in courts and tribunals.

It is further observed that Jirgahs/panchayats etc. do not operate under the Constitution or any other law whatsoever to the extent that they attempt to adjudicate on civil or criminal matters.

“However, they may operate within the permissible limits of the law to the extent of acting as arbitration, mediation, negotiation or reconciliation forum between parties involved in a civil dispute who willingly consent to the same,” the judgment stated.

The top court further ruled that any order, decision or a direction issued by any such individual or group of persons is hereby declared illegal on the grounds that no individual or persons in the name of a jirga/panchayat or under any other name can assume the jurisdiction of a civil or criminal court without any lawful authority.

“The law enforcement agencies all over Pakistan are duty-bound to be vigilant and ensure that if any crime has gone unreported, they of their own accord file FIR(s) with regards to the same and initiate the process of investigation,” the top court observed.

It is further observed that the unchecked operation of these informal jirgas/panchayats etc. as courts creating their own barbaric punishments and unguided methods of executing sentences, amounts to acquiescence to injustice.

The top court observed that Articles of UDHR, ICCPR and CEDAW places a responsibility on the State of Pakistan to ensure that all women in Pakistan have access to courts or tribunals, are treated equally before the law and they be treated equally in all stages of procedure in courts and tribunals.

“In general, honour killings for retribution of the patriarchal concept of honour or compelling women to be wed without their consent as a means of settling disputes is hit by Articles 4, 10-A and 25 read with Article 8 of the Constitution which enjoins that no custom in derogation of any fundamental right can prevail under the law.”

“The impending danger in allowing societal customs to override the law and jurisdiction of courts is unacceptable in a functioning democracy and as the ultimate court of dispensation of justice, this Court is duty-bound to eliminate them and reducing them to mere arbitration councils if the parties involved in a civil dispute, willingly agree to arbitration through the council of certain elders of the village or tribe.”

The top court also deemed it expedient to point out that it is the duty of the public at large to ensure that all crimes are reported to the police, however, where a crime goes unreported then due vigilance should be shown by the concerned local police station.