PESHAWAR: A Peshawar High Court bench on Wednesday issued notices to the attorney general for Pakistan and provincial advocate general seeking their response to a petition challenging the Fata Interim Governance Regulation, 2018.

Justice Qaiser Rasheed and Justice Ikramullah Khan held preliminary hearing into the petition of lawyer Ali Azim Afridi and decided to hear the viewpoint of the attorney general and advocate general on it.

Schedule of the next hearing will be announced later.

Petitioner requests PHC to declare Fata Interim Governance Regulation constitutional

The petitioner requested the court to declare the May 29 Gazette Notification of the Fata Interim Governance Regulation, 2018, illegal and in conflict with the Constitution.

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

The petitioner said permission for the 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 violated the Constitution.

Respondents in the petition are the 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 promulgated the impugned 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, 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 said the Supreme Court had ruled in the famous Sheikh Riazul Haq case 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.

Published in Dawn, June 28th, 2018

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