PESHAWAR: A full bench of the Peshawar High Court on Wednesday put on notice the attorney general for Pakistan and additional chief secretary of the Federally Administered Tribal Areas for giving their viewpoint on whether the court could exercise jurisdiction in the tribal areas in different issues, including illegal detentions as well as services matters.
The bench comprising Chief Justice Mian Fasihul Mulk, Justice Mazhar Alam Miankhel, Justice Yehya Afridi, Justice Qaisar Rasheed and Justice Manzoor Hussain conducted a marathon hearing into around 60 writ petitions related to different issuespertaining to Fata.
The bench has been determining whether it could exercise any jurisdiction in issues related to Fata in the presence of Article 247(7) of the Constitution, which has barred the superior courts from exercising any jurisdiction there.
The court has formulated several questions including: whether the court has jurisdiction regarding federal and provincial employees working in Fata on deputation; whether the court has jurisdiction in cases of federal employees working against key posts in Fata; whether court has jurisdiction to entertain cases of employees recruited in Fata; whether court has jurisdiction to entertain cases of illegal detentions by officers in Fata; whether the court has jurisdiction to look into decisions made by the Fata tribunal in civil and criminal cases; whether the court can exercise powers if cause of action arises/ occurs in settled area but proceedings carried out by political authority in tribal areas; andwhether the court can exercise jurisdiction in contractual obligations arising between government functionaries of Fata and private persons? Additional advocate general Waqar Ahmad and advocates Tariq Afridi, Ghulam Nabi Khan, Ijaz Anwar, Shumail Ahmad Butt, Hashim Raza, Mian Muhibullah Kakakhel and others gave arguments on Wednesday.
Waqar Ahmad and Tariq Afridi said the high court could send a reference to parliament advising it to clarify certain points regarding the court`s jurisdiction or enforcement of fundamental rights in Fata.
Waqar said Article 10-A was incorporated in the Constitution through the Constitution (Eighteenth Amendment) Act 2010 and that the said article provided that for the determination of his civil rights and obligations or in any criminal charge against him a person should be entitled to a fair trial and due process.
The additionaladvocate general said it had to be decided whetherthe law in vogue in Fata was in accordance with Article 10-A.
He suggested that the court could refer a reference to parliament advising it for making clarity whether Article 10-A of the Constitution had to be followed or Article 247(7).
Tariq Afridi shared the views saying the court could send an advice to parliament requesting for extension of jurisdiction of the superior courts to Fata.
Ijaz Anwar said the high court could exercise jurisdiction in such like cases when officials were sent to Fata and that even if a post was created for Fata by the federal government, the court had jurisdiction to entertain service matters of those officials as the funds for those posts were provided by the government.
Mian Muhibullah Kakakhel raised objection over the formation of the bench hearing the issue and contended that in view of several judgments of the Supreme Court, the Constitution of the bench and its proceedings were without jurisdiction.
