ISLAMABAD: The federal and Khyber Pakhtunkhwa governments on Monday questioned the maintainability of a set of petitions challenging the 25th Constitution Amendment under which Fata was merged into KP on May 31, 2018.

As a three-judge Supreme Court bench headed by Justice Umar Ata Bandial took up the petitions, Additional Attorney General Sohail Mahmood raised objections saying the petitions could not be filed under the original jurisdiction of the Supreme Court under Article 184 (3) of the Constitution and, therefore, these should be dismissed forthwith.

The petitions were moved by a number of Maliks of former Fata, mainly by Malik Anwarullah Khan, through their counsel Wasim Sajjad. Senior counsel Khawaja Haris Ahmed, also representing a number of Maliks, sought time to furnish a reply to the objections raised by the government.

The main grievance of the petitioners was that the people of Fata were deeply dissatisfied and aggrieved by the act of merger pursuant to the 25th Constitution Amendment on the grounds that the Fata people, on the basis of an undertaking given by Quaid-i-Azam Mohammad Ali Jinnah, had voluntary agreed to become part of Pakistan and that they were not consulted before introducing the amendment nor any jirga or referendum was held as mandated under Article 247 (6) of the Constitution.

But the federal government argued that by employing any cannon of interpretation or enlarging the scope of the fundamental rights and interpreting it even in a liberal manner, the consultation, referendum or jirgas could not be brought within the meaning of fundamental rights as envisaged in Chapter 1 Part II of the Constitution.

It is an admitted preposition of law that in order to maintain a petition in the original jurisdiction of the SC both the conditions as envisaged in Article 184(3) must co-exist, including the question of public importance with reference to enforcement of the fundamental rights.

Published in Dawn, April 13th, 2021