ISLAMABAD: All political parties are hopeful that the Khyber Pakhtunkhwa (KP) Assembly during its extraordinary session on Sunday — a day before its dissolution on the completion of its five-year term — will manage to validate the bill already passed by the two houses of parliament seeking merger of Fata with the province with the required two-thirds majority.

However, according to some legal and constitutional experts, the failure of the provincial legislators to do so can bring the legislation under legal scrutiny and it can even be challenged before a court of law since the Constitution is silent on the period required for the president to wait for the nod from the provincial assembly prior to giving his assent.

The provincial government had reportedly sent a summary to the governor on Friday — soon after the passage of the constitution amendment bill from the Senate — for summoning a session of the assembly at 2pm on Sunday. The session has been convened only to give its approval to the historic bill that would erase the colonial-era division between tribal areas and the province.

After the provincial assembly’s approval the landmark bill will bring the tribal borderlands, comprising seven agencies and six Frontier Regions, to the mainstream and they will be merged with Khyber Pakhtunkhwa. Tribal people will get representation in the KP Assembly through the amendment.

Constitution is silent about the period required for the president to sign the bill

There has been a rare understanding between the major parties on the opposition and ruling benches over the issue. However, the Jamiat Ulema-i-Islam (JUI-F) has warned it will besiege the assembly secretariat on Sunday to sabotage the session. The party plans to bring workers from tribal areas to Peshawar to block the sitting of the assembly.

The JUI-F has been opposing the bill and demanding a referendum to seek assent of tribal people before Fata’s merger with KP.

Tabling the Constitution (Amendment) Bill in the KP Assembly is a constitutional requirement. As per Article 239(4) of the Constitution, the president cannot assent a constitutional amendment bill which affects geographical boundaries of a province without approval by the assembly of that province.

When contacted, former Senate chairman and law minister in the previous PPP regime Farooq H. Naek admitted that there had been no mention of the period within which the president was required to sign the bill.

He said such a situation had never arisen in the past, “and of course this question is a big question”.

“The constitution is silent as well as there is no precedent in the country,” Mr Naek said.

“If the bill is not passed by the KP Assembly then the question will be if it will lapse or the next KP Assembly will have the prerogative to take the issue again,” he said, adding that anyone could even challenge the process in a court of law.

Mr Naek, however, said he personally believed that the KP Assembly would pass as all the parties had unanimity on the issue.

When contacted, Special Assistant to the Prime Minister on Law Barrister Zafarullah Khan, who had drafted the legislation, said there was no ambiguity in the Constitution and the bill could be taken up by the next KP Assembly, in case the present one failed to do so. He, however, failed to specify any relevant clause of the Constitution in this regard.

Published in Dawn, May 27th, 2018