PESHAWAR: A Peshawar High Court bench has sought comments within a fortnight from provincial home and law secretaries in a petition challenging Khyber Pakhtunkhwa Alternate Dispute Resolution Act, 2020, on multiple grounds.

A two-member bench of PHC Justice Ishtiaq Ibrahim and Justice Waqar Ahmad also issued notice to Khyber Pakhtunkhwa advocate general, asking him to respond to the petition filed by a resident of Malakand district, Majeedullah, who has requested the court to declare several of the provisions of ADR Act in conflict with the Constitution.

Next date of hearing the case will be fixed later.

The petitioner contended that the provisions of the impugned Act, which empowered executive officers to exercise judicial powers, were in conflict with the Constitution and were liable to be struck down.

Petitioner terms provisions of Act in conflict with Constitution

The respondents in the petition are KP government through law secretary, secretary home and tribal affairs department, provincial assembly through its secretary and Malakand commissioner.

Barrister Adnan Khan appeared for the petitioner and said that the Act was enacted last year and it did not come into force at once for the whole province. He stated that under section 1(3) of the Act, the home department was empowered to name districts and commencing dates for its extension and enforcement.

He said that home department issued a notification on May 20 and made the Act operative in six districts of erstwhile Fata including South Waziristan, Kurram, Orakzai, Khyber, Bajaur, and Mohmand.

Barrister Adnan stated that the Act provided for appointment of Saliseen, who should act as panel of mediators or conciliators, etc.

He argued that apart from courts of law empowered to refer matters for their amicable settlement to the panel of Saliseen, the Act created a parallel forum in the name of the ‘referring authority’ by empowering a deputy commissioner of a district or other executive officers to take cognisance of a civil dispute and refer it to Saliseen.

He added that such officers were also empowered under section 3(2) to frame issues in civil matters.

Moreover, he stated the deputy commissioner had also been empowered to exercise jurisdiction in criminal cases and he or she could refer a criminal case to saliseen prior to taking cognizance of the case by a court of competent jurisdiction.

He added that the practical of the same was that challan (final charge sheet) in compoundable criminal cases could be submitted before the DC instead of the court of law.

He contended that Saliseen were also given judicial powers, which were not much different from those previously exercised under the erstwhile Frontier Crimes Regulation (FCR).

Barrister Adnan contended that the decisions, orders and actions of the said mentioned forums had also been kept out of the scrutiny of the superior courts. He argued that establishing parallel judiciary by conferring judicial powers on executive officers was against Article 175 of Constitution.

He pointed out that the law was also in violation of certain provisions of Code of Criminal Procedure. He added that Supreme Court had already in the case of National Commission on the Status of Women declared in 2019 similar forums like that of Saliseen unconstitutional and declared the functioning of ‘jirga’ and ‘panchayat’ as illegal.

Published in Dawn, June 8th, 2021