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Tuesday, March 21, 2023

Taliban have no authority in Pakistan, SC

The Supreme Court has held that the Taliban had no legal authority to decide cases and their decision was not applicable to Pakistan, which was a sovereign country, the applicable law of which applied to every inch of its territory.

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The Supreme Court has held that the Taliban had no legal authority to decide cases and their decision was not applicable to Pakistan, which was a sovereign country, the applicable law of which applied to every inch of its territory.

It may be noted here that on 24 May 2018, Pakistan’s National Assembly passed the FATA Reforms Bill, merging FATA, a Pashtun majority area along the Afghan border, with Khyber Pakhtunkhwa. The merger is considered a big step toward bringing constitutional governance and restoring peace to these areas.

The judgment was issued by a two-judge SC bench consisting of Justice Qazi Faez Isa and Justice Maqbool Baqar on a petition filed by Gul Nawaz and others against the 2019 Peshawar High Court order in a land dispute case.

During the hearing, the apex court’s attention was drawn to iqrar nama (agreement) — a ‘decision’ issued by Emarat-i-Islami Taliban, Waziristan-wa-Afghanistan (Taliban).

The apex court was informed that the petitioners had entered into an agreement on April 30, 2009 for sale of certain land. They were required to provide evidence in support of their claim over the land before a trial court judge, but they failed to do so despite being granted a number of opportunities. Resultantly, their side was closed and the judge dismissed their suit.

The petitioners then challenged the decision in the PHC which also dismissed their appeal. Consequently, they approached the Supreme Court with a plea that they were not given sufficient opportunity to lead evidence before closing their side and dismissing their suit.

The trial court had in its order on Oct 3, 2012 referred to an application by the petitioners whereby they had sought the trial court’s permission to prove iqrar nama through secondary evidence because the original one was stated to be with the defendant (Rashid Ahmed).

The Supreme Court order recalled that the petitioners had relied on the iqrar nama, but later argued that the document was instead a decision.

Leaving aside the question of whether the petitioners could change their stance so fundamentally, Justice Isa observed, “we have examined the document which was a ‘decision’ by the Emarat-i-Islami Taliban, Waziristan-wa-Afghanistan”.

The attempt by the petitioners to alternatively categorize the purported decision as an agreement was also not permissible because it undermined the sovereignty of Pakistan, Justice Isa observed.

The judgment said the Taliban had no legal authority to decide cases since they had infiltrated into Pakistan and by mid-2005 illegally occupied and assumed control over a part of the territory of Pakistan, including parts of Waziristan.

“Pakistan is a sovereign country and the applicable law of Pakistan applies over every inch of its territory,” the verdict said, adding that every square inch of the territory of Pakistan was precious and must be kept free and safe.

The physical possession of any part of the territory of Pakistan taken over by the Taliban contravened the Constitution and any decision given by the Taliban would be unconstitutional, unlawful and of no legal effect.

“Subverting the Constitution and subjugating the people do not confer legitimacy on an aggressor nor renders an aggressor’s decisions constitutionally legitimate,” Justice Isa observed.

Thus the purported agreement was “forbidden, unlawful and opposed to public policy” in terms of Section 23 of Contract Act, 1872 and, therefore, it was of no legal effect, the judgment said.

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It observed that the trial court had provided a number of opportunities to the petitioners to lead evidence, but they repeatedly failed to establish the subsistence of the agreement between themselves and the respondents. “Therefore, leave to appeal is declined and consequently this petition is dismissed,” the SC judgment said.

Governance in tribal areas

The peace and order in tribal areas faded away in the 1990s when militancy took its roots and started dominating the political discourse of FATA. The emergence of the militancy created social, cultural, and economic problems for the natives. It led to an unprecedented rise in the number of internally displaced people (IDPs) in Pakistan.

Experts argue that several military operations to eliminate terrorists from the tribal areas have adversely affected socio-cultural settings of the area. Therefore, the incumbent government needs an overall reform package in order to upgrade the damaged system of governance and the rule of law.

Salman Bangash, Assistant Professor at the Department of History, University of Peshawar, believes that “the historic constitutional and legislative changes that have brought about Fata’s merger with Khyber Pakhtunkhwa is a first step in the right direction, but due to complexities, intricacies, and numerous hurdles, it will be a gigantic task to implement them”.

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“Major problems and challenges,” argues Mr. Bangash, “of such implementation include modification and changes to the prevailing tribal administrative set-up and to the role and responsibilities of existing officials and various tribal forces such as the Levies Force and Khasadars.”

There are several rare natural resources prevalent in FATA such as marble, copper, limestone, and coal but their extraction remained minimum due to the ongoing war on terror. In the backdrop of FATA’s merger with KP, it is widely hoped that the incumbent government shall focus on building schools, colleges and employment opportunities in the region.