PESHAWAR, Aug 11: The federal government has turned down a request of the NWFP government seeking permission to extend to the Provincially Administered Tribal Areas (Pata) a ‘controversial’ ordinance that transferred some powers of district nazims under the Code of Criminal Procedure to district coordination officers.

Official sources said the federal law and justice division had also questioned promulgation of the ordinance and termed it in violation of Article 143 of the Constitution.

Following the objection by the federal law division, the Ministry of Safron last month returned to the provincial home department a summary declining to permit extension of the law to Pata.

NWFP Governor Owais Ahmad Ghani had promulgated the ordinance in March and through it the powers of the district nazim in issuing orders under section 144 of CrPC were assigned to the DCO. As the constitutional life of a provincial ordinance is three months, it was promulgated again on June 6. Under Article 247 of the Constitution a provincial law is applicable to Pata if the NWFP governor issues a notification in this regard with approval of the president. Pata here includes the regions of Swat, Chitral, Shangla, Buner, Upper and Lower Dir and tribal areas of Kohistan and Mansehra districts.

It is learnt that the provincial home department had sent the summary to the Ministry of States and Frontier Regions in Islamabad seeking approval for extending the ordinance to Pata.

The ministry sent the summary to the law and human rights division for vetting and legal opinion. The law and human rights division opined that the step taken by the provincial government was contrary to the Constitution.

The sources said the federal law division had observed that CrPC fell under entry No. 2 of the Concurrent Legislation list in the 4th Schedule and the provincial government could not make such amendments that were in conflict with the federal law.

The federal government also referred to Article 148 under which the executive authority of every province shall be so exercised as to secure compliance with federal laws applying in that province.

The law division observed that the ordinance should deem to be void under Article 143 of the Constitution. Article 143 provides that if any provision of a provincial law is repugnant to any provision of a federal law with respect to any matter enumerated in the Concurrent Legislative list, the federal law should prevail and the provincial law to the extent of the repugnancy be void.

While introducing the devolution of power plan, President Pervez Musharraf had promulgated the Code of Criminal Procedure (Amendment) Ordinance on Aug 13, 2001, through which drastic changes were made in CrPC, including abolition of the executive magistracy system.

Through the same ordinance, the district nazim had been empowered to issue orders under section 144 of CrPC. When the governor promulgated the controversial ordinance in March 2008, legal circles had criticised it on the same ground that it was in violation of Article 143.