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PESHAWAR: The Peshawar High Court on Thursday directed the Khyber Pakhtunkhwa government to submit the minutes of its last meeting held on the mainstreaming of erstwhile Fata following the region’s merger with the province under the Constitution (Twenty-Fifth Amendment) Act.
A bench consisting of Chief Justice Waqar Ahmad Seth and Justice Ishtiaq Ibrahim issued the directives while hearing a petition filed by lawyer Ali Azim Afridi, who sought the court order to declare the Fata Interim Governance Regulation, 2018, unconstitutional.
It fixed Oct 30 for the next hearing into the petition asking additional advocate general Qaiser Ali Shah to produce the meeting’s minutes to reveal the government’s decisions about the former tribal areas after its merger with KP.
Lawyer challenges Fata Interim Governance Regulation in PHC
The petitioner requested the court to declare the May 29 Gazette Notification of the FIGR 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 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 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, the ministry of the State and Frontier Region through its secretary, KP government through its law secretary, and secretary of the provincial 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 bench asked the petitioner if his petition hadn’t become infructuous as one of his prayers was the extension of the jurisdiction of superior courts to Fata, which had been met after the enactment of the Constitution (Twenty-Fifth Amendment) Act. The petitioner insisted that the administrative officers unconstitutionally continued to exercise judicial powers in the erstwhile Fata.
He said the Constitution allowed the country’s president to make regulations for the peace and good governance of Fata and to that effect, 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 FIGR 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.
Published in Dawn, October 26th, 2018
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