PESHAWAR: A local lawyer on Wednesday challenged the Fata Interim Governance Regulation, 2018, in the Peshawar High Court, claiming that the regulation violates the Constitution.

Ali Azim Afridi filed the petition requesting the court to declare the May 29 Gazette Notification of the Fata Interim Governance Regulation, 2018, illegal and in conflict with the Constitution.

The petitioner challenged the regulation on multiple grounds and said it went against Article 175 of the Constitution, which guaranteed separation of the judiciary from the executive.

He also said permission for commissioners to act as judges, formation of a council of elders to decide civil and criminal matters, constitution of a qaumi jirga, modification of some chapters of the Code of Criminal Procedure, inclusion of the Third Schedule in the regulation, and declaration of certain areas as administered areas violate the Constitution.

Respondents in the petition are Federation of Pakistan through law secretary; the country’s president through his principal secretary; State and Frontier Region ministry through its secretary, KP government through law secretary, and secretary of the home and tribal affairs department.

The country’s president had issued that notification on May 25, which was notified in the Official Gazette on May 29.

The regulation also caused the repeal of the colonial-era Frontier Crimes Regulation.

The petitioner said the Constitution allowed the country’s president to make regulations for the peace and good governance of Fata in line with Article 247(5).

He said for giving effect to the stated provision of the Constitution, it was provided that an interim system of administration of justice, maintenance of peace and good governance is expedient for running the affairs of Fata through the Fata Interim Regulation of 2018.

The petitioner said the impugned regulation mentioned that agencies in Fata were declared tribal districts and tehsil and frontier regions subdivisions, while nomenclature of the political agent was changed as deputy commissioner and additional political agent and assistant political agent’s as additional commissioner and assistant deputy commissioner.

He said all those administrative officers had been empowered to act as judges in their respective capacity.

The petitioner said in sheer disregard to the law, the deputy commissioner had been allowed to constitute a council of elders for settling disputes of civil nature, while a likeminded individual called a ‘judge’ was allowed to form a council of elders for deciding disputes of criminal nature.

He said the regulation provided for the executive to be considered part of the judiciary, which was against Article 175 (3) of the Constitution.

The petitioner also pointed out that the Supreme Court in the famous Sheikh Riazul Haq case had ruled that the principle of separation and independence of judiciary as envisaged in Article 175 of the Constitution was also applicable to the lower judiciary as it was part of the judicial hierarchy and therefore, its separation and independence had to be secured and preserved as that of the superior judiciary.

He said the law didn’t allow anyone to arrogate to oneself the roles of complainant, prosecutor, judge and executioner at the same time.

Published in Dawn, June 14th, 2018

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