PESHAWAR, Jan 4: The NWFP Assembly's law reforms committee has questioned the functioning of subordinate judiciary services tribunal and observed that constitutional requirements were not fulfilled before setting up the tribunal.

The committee,headed by MPA Abdul Akber Khan, in a meeting held recently, asked the NWFP advocate-general to assist it on how the tribunal could be set up without fulfilling therequirements under Article 212 of the Constitution.

The tribunal was being criticized by legal circles due to lacunas in the NWFP Subordinate Judiciary Service Tribunal Act, 1991, under which it was set up.

Lawyers were asking how an appeal of a judicial officer, whose service was terminated by the high court's chief justice, could be heard by the tribunal comprising judges junior to the chief justice. They believed that few junior judges had the courage to go against the decision of the chief justice.

The tribunal was also criticized for delay in deciding appeals of judicial officers. Even cases pertaining to annual confidential reports had been lingering on before the tribunal for many years.

Sources in the committee claimed that the tribunal had been functioningin an unconstitutional manner for more than a decade. The NWFP Assembly passed the act in June 1991 for the establishment of the tribunal regarding matters relating to terms and conditions of service of the subordinate judiciary.

Earlier the judicial officers were treated like other civil servants as far as their service matters were concerned and they had to move the normal services tribunal in case of grievances.

Under Article 212(1) of the Constitution the legislature may by an act provide for the establishment of administrativecourts or tribunals to exercise exclusive jurisdiction in matters relating to the terms and conditions of government servants, including disciplinary matters.

A member of the committee told Dawn that under clause 2 of the article its provisions should not apply to a tribunal established under an act of a provincial assembly unless, at the request of the assembly in the form of a resolution, parliament extends the provisions to such a tribunal.

"As far as we know, after the enactment of the law in 1991 the resolution required under Article 212 was referred to parliament, which has yet to extend the provisions to the tribunal," he added.

Under the act the tribunal consists of four Peshawar High Court judges. As the administrative committee of the high court comprises four senior judges, including the chief justice, the judges in seniority list from No.5 to No.8 are included in the tribunal.

Justice Shahjehan Khan has been notified as the chairman of the tribunal.Previously, the NWFP governor had the powers to appoint and remove the judicial officers and the departmental appeals had to be made to him.

A few years ago the governor delegated the powers of to the high court chief justice. The next appeal is made to the judicial tribunal. The lawyers contend that the governor could only delegate powers under Article 129 to his subordinate officers and the chief justice was not subordinate to him.

Normally, two judges of the tribunal hear the appeal of a judicial officer. Last year the tribunal conducted hearing only once. Some cases filed against ACRs by the judicial officers have been pending for five or more years. A majority of the appeals filed against removal from service are also pending.