ISLAMABAD: The Khyber Pakhtunkhwa (KP) government maintained before the Supreme Court on Friday that parliament should be asked to suitably amend Article 247(7) of the Constitution to extend the jurisdiction of superior courts to people living in the Federally Administered Tribal Areas (Fata).

The stance was adopted by Additional Advocate General (AAG) KP Waqar Ahmed Khan before a three-judge Supreme Court bench, headed by Chief Justice Nasirul Mulk. The bench was hearing an appeal filed by the federal government challenging the April 7, 2014 Peshawar High Court (PHC) directions to the government to place before the parliament a bill to amend Article 247(7) of the Constitution.

Representing the federal government, Deputy Attorney General Sajid Ilyas Bhatti argued that the central government felt aggrieved by the high court decision and had consequently appealed it before the apex court.

Take a look: Resolution passed to extend superior courts' jurisdiction to Fata

The appeal against the April 7 high court verdict was moved by the Attorney General’s Office, seeking leave to appeal against the PHC order to amend Article 247 (7), which deals with the administration of the tribal areas.

The apex court has already issued notices to the AG as well as the KP advocate general. The date for the next hearing will be fixed later.

Article 247(7) says that neither the Supreme Court nor a high court can exercise any jurisdiction under the Constitution in relation to tribal areas, unless the parliament by law so provides.

The PHC, in its judgment, had directed parliament through the federal government to bring suitable amendments in Article 247(7) of the Constitution, enabling the people of Fata to invoke the jurisdiction of the high court or Supreme Court in case their fundamental rights were infringed. This right, though available to them under the Constitution as citizens of Pakistan, could not be availed because of the bar contained in clause 7 of Article 247 of the Constitution.

The federal government, in its appeal, stated that it has been condemned unheard by not being given an opportunity to make their case before the high court, which was against the principle of natural justice.

AG maintains high court cannot ask parliament to legislate, amend constitution

The government’s appeal contended that the appropriate forum to amend Article 247(7) was parliament and not the high court. The high court was not justified in issuing a specific direction to parliament through the federal government and thus its direction breached the principle of separation of powers between the judiciary, parliament and the executive.

The petition pleaded that any court, under the written constitution, enjoys a jurisdiction as conferred on it by the Constitution or statute, but in the matter at hand, the jurisdiction exercised by the high court was specifically barred by the constitution and the judgment was against the provisions of Article 175(2) of the Constitution.

The federal government stressed that amending the Article 247(7) was a political question and the high court should not have entered the political thicket.

The high court cannot issue direction to parliament regarding amendments because the high court was declared to be a nonsupra-constitutional institution in the 1992 Hakim Khan case.

Published in Dawn February 14th , 2015

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