PESHAWAR: The Peshawar High Court on Tuesday issued notices to the attorney general for Pakistan and Khyber Pakhtunkhwa advocate general on a petition, which challenged the government’s move to grant judicial powers to executive officers in wake of Covid-19 pandemic.

A bench consisting of Chief Justice Waqar Ahmad Seth and Justice Ijaz Anwar asked the two officials to respond to the petition on the next hearing to be fixed later.

Petitioner Shabina Noor, a lawyer, requested the court to declare the Apr 16 notification of the home department on the matter unconstitutional.

The bench issued the order after hearing preliminary arguments of the petitioner’s lawyer, Noor Alam Khan.

Petitioner prays high court to strike down relevant notification

The lawyer requested the court to also declare Section 14-A of the Code of Criminal Procedure Code (CrPC), which granted assistant commissioners (ACs) and additional assistant commissioners (AACs) the powers of special magistrate, a violation to Article 175(3) of the Constitution that guarantees separation of the judiciary from the executive.

He said through that notification, the provincial government had conferred the powers of First Class special magistrate on all ACs and AACs to see offences under the National Disaster Management Act, 2010, and KP Public Health (Surveillance and Response) Act, 2017, and other federal and provincial laws related to disaster management and public health for the time being.

He added that those officers had been empowered to conduct summary trials.

The lawyer said under the KP Public Health (Surveillance and Response) Act, 2017, powers for trial were assigned to sessions court and not any special magistrate but despite that, the government had in a way amended the law by assigning powers to executive officers under CrPC Section 14-A.

He wondered how the government could replace a sessions judge with a special magistrate through a notification without amending the law.

Mr Noor Alam said the National Disaster Management Act was silent about trial court and therefore, as per sections 5(2) and 29 of CrPC, determination of trial court for offences mentioned in it should be made in line with second schedule of CrPC.

He said intervention of the executive, which was contrary to the principle of independence of judiciary, had been declared unconstitutional by the Supreme Court in a number of verdicts and that it had been declared an encroachment on the powers of judiciary by the legislature and the executive.

The lawyer said Articles 2-A and 175 of the Constitution had guaranteed independence of the judiciary and its separation from the executive, which was further elaborated in different apex court judgments.

He said despite clear provisions of the Constitution, the government had inserted Section 14-A in CrPC through the Finance Act in 2006, which was unconstitutional.

The lawyer said Section 14-A of the law empowered the government to appoint special magistrates for price control but the provincial government was misusing it by extending its application to other laws, including those related to disaster management and public health.

Respondents in the petition are the KP governor and

chief minister through their principal secretaries, provincial chief secretary, provincial home secretary, and federal government.

Published in Dawn, June 10th, 2020