ISLAMABAD: The federal government has challenged in the Supreme Court the April 7 decision of the Peshawar High Court (PHC) to instruct the parliament to amend Article 247(7) of the Constitution in order to extend jurisdiction of superior courts to people of the Federally Administered Tribal Areas (Fata).

A petition has been filed with the apex court by office of the attorney general, seeking leave to appeal against the PHC order about Article 247 (7) of the Constitution which deals with the administration of tribal areas.

The date for hearing in the case has yet to be fixed.

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

In its April 7 verdict, the PHC instructed the parliament through the federal government to bring suitable amendments in Article 247(7) to enable the people of Fata to invoke the jurisdiction of the high courts or the Supreme Court in case of infringement of their fundamental rights. Although protection is available to them under the Constitution it cannot be availed because of the bar contained in clause 7 of Article 247.

In its appeal the federal government has contended that it was ‘condemned unheard’ as it was not given an opportunity to present its case in the matter. Because this is against the principles of natural justice, the PHC judgment is liable to be set aside.

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The government’s petition adds that the appropriate forum for amendments to Article 247(7) is the parliament and not the high court. The high court was not justified in issuing a specific direction to the parliament and thus its decision violated the principle of trichotomy of powers between the judiciary, parliament and executive.

Any court under the Constitution enjoyed a jurisdiction as conferred upon it by the Constitution or statute but in the instant case the jurisdiction exercised by the high court was specifically barred by the Constitution, said the petition. Therefore, the judgment was against the provisions of Article 175(2) of the Constitution.

The federal government also emphasised that amendments to Article 247(7) for invoking jurisdiction of the high court or Supreme Court involved a political question.

The high court could not issue any direction to the parliament with regard to amendments to Article 247(7) on the touchstone of Article 2A of the Constitution because the “high court is not a supra-constitutional body as held by the Supreme Court in the 1992 Hakim Khan case”, said the petition.

It added that the high court had not rightly exercised the power under Article 199 of the Constitution by adjudicating upon a legal question with regard to extension of laws to the tribal areas without approval of the president and governor when there was a bar under Article 247(7) that the superior courts could not exercise jurisdiction in Fata.

Published in Dawn, July 27th, 2014