PESHAWAR: The Peshawar High Court on Tuesday issued notices to Khyber Pakhtunkhwa governor, chief minister and several other government functionaries in a contempt petition filed for the non-implementation of its judgment of declaring unconstitutional different provisions of Fata Interim Governance Regulation, 2018.

A bench consisting of Chief Justice Waqar Ahmad Seth and Justice Abdul Shakoor fixed Jan 8 for the next hearing into the petition asking the respondents to explain their viewpoint on that date about the alleged violation of the court’s judgment on the matter.

The high court had declared unconstitutional on Oct 30 several provisions of the FIGR, 2018, and ruled that any decision of civil or criminal nature under that law would be void after a month.

PHC seeks response about ‘violation’ of order on Fata regulation

Although the deadline set by the high court passed on Nov 30, the government didn’t set up regular courts to the tribal districts, which were merged with Khyber Pakhtunkhwa through the Constitution (Twenty-Fifth Amendment) Act, 2018.

The petitioner, advocate Ali Azim Afridi, said the high court had ruled that after the enactment of the 25th Constitutional Amendment any judicial power exercised by the executive officers in the tribal districts were unconstitutional and against the principle of separation of judiciary from the executive.

The petitioner said the court declared: “By now the constitutional requirement is a separate and independent judiciary from the executive and as such any powers exercised by the executive, which come within the domain of judiciary/ judges the same would be nullity in the eyes of law.”

He said the court had observed that the FIGR was promulgated by the government so as to cover up its inefficiency of not formulating any formula for separation of judiciary and the executive when the Constitution (Twenty-fifth Amendment) Act was passed.

The petitioner said the bench had declared that after 25th Amendment (Act No XXXVII of 2018) was made, criminal and civil disputes were to be decided by judges and not the executive as was done under the 2018 regulation.

The respondents in the contempt petition are federal law secretary retired Justice Abdul Shakoor Paracha, FIA director general Bashir Ahmad Memon, KP Governor Shah Farman, KP Chief Minister Mehmood Khan, KP chief secretary Naveed Kamran Baloch, KP inspector general of police Salahuddin Mehsud, provincial home secretary Ikramullah Khan, provincial law secretary Zakaullah Khattak, and PHC registrar Khwaja Wajihuddin.

The petitioner said the respondents were given a month’s time to implement the judgment but they neither showed any interest nor did they take effective measures for the purpose.

He said after the merger of Fata with KP and in light of a court judgment, it was mandatory for the FIA and the KP police to extend their jurisdiction to tribal districts, but no step was taken for the purpose.

Through the FIGR, which was promulgated by President of Pakistan in May, the colonial-era FCR was repealed. However, judicial powers continued to be with the executive officers, including political agents (now deputy commissioners) and assistant political (now assistant commissioner).

The bench had observed: “Mere existence of a tribal society or a tribal culture does not by itself create a stumbling block in the way of enforcing ordinary procedure of criminal law or civil law, trial and detention etc., which is enforceable in the entire country.”

Published in Dawn, December 19th, 2018