PESHAWAR, Sept 15: The NWFP government has promulgated an ordinance for the Provincially Administered Tribal Areas (Pata) without seeking the president’s approval, official sources said.

Open market transactions of tobacco in Pata have been brought under the net of tobacco development cess through an ordinance without getting the president’s approval in an apparent violation of the Constitution.

The provincial government promulgated the North West Frontier Province Finance (third amendment) ordinance, 2003, in the last week of August, whereby the provincially administered tribal areas - previously forming one-third of the Malakand division - were brought under the tax net without meeting the constitutional requirements.

Under Article 247 of the Constitution the governor of a province involving tribal territories is required to seek approval of the president before promulgating an ordinance dealing with the provincially administered tribal areas.

Section 3 of Article 247 contains that “ no act of Majlis-i-Shoora (parliament) or a provincial assembly shall apply to a provincially administered tribal area or to any part thereof, unless the governor of the province in which the tribal area is situated with the approval of the president, so directs; and in giving such a direction with respect to any law, the president or, as the case may be, the governor, may direct that the law shall, in its application to a tribal area, or to a specified part thereof, have effect subject to such exception and modifications as may be specified in the direction.”

However, in the case of the NWFP Finance (third amendment) Ordinance, 2003 no such approval was sought from the president.

Senior government functionaries concerned, when contacted, on request of anonymity confirmed that the ordinance had been promulgated without the president’s consent.

The ordinance was promulgated on August 18, signed by the acting governor of the province Bakht Jehan Khan, Speaker NWFP assembly.

At the time of promulgating the ordinance on August 18,  the sitting governor Syed Iftikhar Hussain Shah was on leave.

Under the newly promulgated ordinance which replaced some part of the NWFP Finance Act, 2003, the provincial government distributed the tobacco growing areas of the province into three zones for the purpose of collecting tobacco development cess from farmers involved in the open market transactions.

The new scheme of things put an end to the system - introduced in June - where farmers were supposed to pay development cess at the rate of Rs2 per kilogramme of tobacco at the time of transporting the crop from one district to another.

In this respect, a contract for collecting cess had been awarded to a contractor against a sum of Rs50 million. The contractor had also established recovery centres on the entry points of the districts concerned.

However, under the new scheme of things development cess on the open market transactions would be collected on the basis  of zones instead of districts.

Zone-I includes the tobacco growing districts of Charsadda, Swabi, Mardan, Nowshera, tehsil Dargai (falling under Pata) and lower areas of district Buner (also falling under Pata) adjoining district Swabi.

Zone-II comprised Mansehra district whereas zone-III includes the Malakand division.

Not only has the ordinance been promulgated without taking consent of the president, the provincial government also mistakenly mentioned the “ Malakand division “ in the text of the ordinance.

Following the introduction of the local government system on August 14, 2001, administrative entities previously known as “divisions” stand abolished.

“Though the divisions stand abolished, the provincial government has mentioned the Malakand division in the recently promulgated ordinance,” said a senior officer.

The ordinance, said the sources, reflected gross negligence on the part of the Law Department, NWFP.

Sources in the provincial cabinet said that the ordinance had been promulgated in haste in an attempt on the part of the minister concerned to get it promulgated before the incumbent governor resumed his duties.

“NWFP Minister for Excise and Taxation Fazal Rabbani and  Speaker NWFP assembly (acting governor) Bakht Jehan Khan share political affiliation, representing the Jamaat-i-Islami in the provincial assembly, hence, they might have acted in haste to promulgate the ordinance before the return of governor Iftikhar,” said a member of the provincial cabinet.

Provincial government in June had brought the open market transactions of tobacco under the tax net in fulfilment of a condition of its loan agreement with the World Bank.

Under the agreement the government had committed to bringing the open market transactions of tobacco under the tax net to improve its revenue base by Rs50 million annually.