PESHAWAR: A Peshawar High Court bench on Thursday put on notice the attorney general for Pakistan and Khyber Pakhtunkhwa advocate general in a writ petition requesting the court to declare as unconstitutional the judicial powers assigned to executive officers in tribal districts.
The bench comprising Justice Qaiser Rasheed and Justice Mohammad Ayub Khan observed that as provision of a law, Fata Interim Governance Regulation 2018, was challenged, therefore, it was necessary to hear the point of view of the attorney general and advocate general on the issue.
The bench also issued notices to different respondents including President of Pakistan’s principal secretary; KP chief secretary; federal secretaries of cabinet division, parliamentary affairs, state and frontier regions, law and human rights; KP governor’s principal secretary; Fata Tribunal through its chairman; and KP home secretary.
Next date for hearing the petition will be fixed later.
The petition is filed by Prof Anwar Shah, a teacher of mathematics at Bajaur Degree College, seeking orders to declare illegal and unconstitutional the exercising of judicial powers by political agents (now deputy commissioner), assistant political agents (assistant deputy commissioners) and commissioners under the Fata Interim Governance Regulation (FIGR), 2018, which was promulgated in May this year.
He prayed the court to declare that exercise of judicial powers were in violation of Article 175(3) of the Constitution, which guaranteed the separation of judiciary from the executive.
The petitioner requested the court to declare illegal and a violation of Article 175(3) of the Constitution the appointment of retired bureaucrats to Fata Tribunal, the third and last judicial forum under the repealed FCR.
He has also sought the court’s directions for the respondents, including the federal government, to progressively separate judiciary from the executive in the tribal districts of erstwhile Fata as a constitutional requirement.
Mohammad Farooq Afridi, lawyer for the petitioner, said that his client had the power of attorney of his father, Gul Badshah, in the Qazi Gul versus Gul Badshah case about a property dispute.
He said that the case was initiated in the court of the assistant political agent, Khar in Bajaur Agency and the trial court had passed an order in favour of the petitioner on March 6, 2008.
The lawyer said that Qazi Gul had filed an appeal against the order but the appellate authority had upheld it on January 7, 2010.
He said that the respondent later filed a revision petition against the two orders but Fata Tribunal dismissed it on March 19, 2011, followed by a review petition, which too was dismissed on April 30, 2012.
The lawyer said that since April 30, 2012, the issue had been pending with the court of APA for execution but he and other respondents had been using delaying tactics in that respect.
He argued that provision of Article 175(3) of the Constitution was mandatory but the respondents, including the federal government, badly failed to implement it.
Mr Afridi argued that Frontier Crimes Regulation was repealed through FIGR 2018, but even in the new law powers were assigned to executive officers in sheer violation of the constitutional provisions.
Published in Dawn, September 7th, 2018