PESHAWAR, Dec 5: The NWFP government has recently re-promulgated a controversial ordinance aimed at assigning judicial powers to executive officers despite the matter being pending before the Peshawar High Court.

Official sources told Dawn that the ordinance was re-promulgated on behalf of the NWFP governor by provincial law department contrary to its earlier stance as initially when the ordinance was promulgated in August 2008 the law department had raised serious objections against it and had also not vetted the draft following which it was promulgated by the home department.

Peshawar High Court Chief Justice Tariq Pervez Khan had also declined to give concurrence to the proposal by the provincial government for assigning powers of special judicial magistrate to executive officers in accordance with the controversial ordinance. Despite that fact the law department went ahead with the re-promulgation of the ordinance.

The controversial ordinance – The Code of Criminal Procedure, 1898 NWFP Motor Vehicle Ordinance, 1965, West Pakistan Maintenance of Public Order Ordinance, 1960 and Police Order, 2002 (Amendment) Ordinance, 2008 – was promulgated by the NWFP governor on August 5, 2008, despite objection raised by law department that it was not in line with the constitution.

As the constitutional life of a provincial ordinance is three months, therefore, the said ordinance lapsed on Nov 4.

It is learnt that contrary to its previous stance the law department re-promulgated, the ordinance on Nov 17 and it appeared in the Official Gazette on Nov 22.

The initiative to assign various powers to the executive officers was taken by home department and a summary was sent to law department for vetting in August. However, the law department had returned the summary without vetting with various observations.

The ordinance mentioned different categories of powers to be exercised by executive officers. The executive officers are empowered to deal with different categories of cases including section 107 to 112, 127 to 143, 145, 146, 147, 174 and 176 of CrPC; Motor Vehicle Ordinance; Section 16 of the MPO; and Article 144 of the Police Order.

These provisions are mostly related to public nuisance, public peace and tranquillity, unlawful assemblies and motor vehicles etc.

The officials recommended for exercising the said powers included the district coordination officers, assistant coordination officers, district officer revenue, deputy district revenue officers and assistant district revenue officers.

Earlier, when the ordinance was initially promulgated the NWFP Home Department had sent a letter to Peshawar High Court in September last requesting concurrence/recommendation for conferment of powers of special judicial magistrate on certain officers of government.

However, PHC Registrar Qalandar Ali Khan had sent a reply to the government on Oct 8 informing it that the chief justice had declined to give concurrence to the request.

The government was seeking concurrence/recommendation of the high court under section 14 of the Criminal Procedure Code. Under the said section the provincial government may on the recommendation of the high court confer on any person all or any of the power conferred or conferrable under the CrPC on a judicial magistrate.

Moreover, four of the district nazims and a lawyer, Moazam Butt, had filed constitutional petitions before the high court wherein various steps of the provincial government were challenged including the controversial ordinance.

The high court on Nov 25 admitted to full hearing the two ordinances and put on notice the respondents including the provincial government.

Legal experts claimed that re-promulgation of the ordinance would be a futile exercise unless the chief justice gave concurrence to giving judicial powers to executive officers in accordance with section 14 of the CrPC. They added that in case any executive officer used judicial powers without concurrence of the chief justice it would be illegal.