PESHAWAR, Aug 14: The NWFP governor and chief minister have approved a summary about reviving the erstwhile executive magistracy system by assigning judicial powers to executive officers.
Official sources said that despite some objections raised by NWFP Law Department the government went ahead with the plan and the summary was sent to Chief Minister Ameer Haider Hoti who approved it on Aug 11.
Following approval by the chief minister it was transmitted to Governor Owais Ahmad Ghani who also assented to it. The summary provides for promulgation of an ordinance for assigning judicial powers to different categories of executive officers including the district coordination officer (DCO), assistant coordination officer (ACO), district officer revenue (DOR), deputy district revenue officer (DDRO) and assistant district revenue officer (ADRO).
The proposed ordinance is named as ‘The Code of Criminal Procedure (NWFP), Provincial Motor Vehicle Ordinance 1961, West Pakistan Maintenance of Public Order Ordinance 1960 and Police Order 2002 (Amendment) Ordinance, 2008.’
Following promulgation of the ordinance the executive officers would be 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.The executive magistracy system was abolished on Aug 14, 2001, after President Pervez Musharraf promulgated an ordinance through which the CrPC was amended.
Official sources said that the provincial law department had not vetted the summary and returned it with certain objections to the home department. However, the objections were overruled and the provincial chief secretary also gave a nod to it.
The law department had objected that the CrPC was an existing law belonging to concurrent legislative list of the 4th Schedule to the Constitution. It was added that any amendment in it by the provincial legislative inconsistent with existing powers would be void within the meaning of Article 143.
Under Article 143 both the federal and provincial governments are empowered to legislate on subjects mentioned in the Concurrent List but province cannot enact a law in conflict with the federal law. As the ordinance to abolish executive magistrates was promulgated by the president, therefore, the provincial government could not legislate contrary to that.
NWFP Law Department proposed that it would appropriate to forward the subject proposal to interior ministry for making requisite amendments by parliament.
In the summary the home department had cited various grounds for the revival of judicial powers for the executive officers. The department stated that the abolishing of the previous system had resulted in removal of a vital instrument of the government for implementation of law and order at the district level.
“The cadre of executive magistrate, who used to be the eyes and ears as well as implementing arm of the state was abolished and writ of the state consequently evaporated,” it claimed, adding the law and order situation in the province is at present hitting the rock bottom due to steep rise in militancy, sectarianism, fast eroding writ of the state as there is no substitute to fill the vacuum created by the abolition of the executive magistracy.
NWFP Home Department claimed that the DCO were found incapable of handling many issues especially those related to law and order, sectarianism, militancy etc. The department has also cited price hike and no check on price control as reasons for reviving the previous system.
The law department observed that so far issues like checking price hike were concerned section 14-A was added in the CrPC in the year 2006 vide which dealt with controlling prices. Under the law punishing the violators were conferred on executive functionaries besides, there were numerous TMOs, DCOs, ACOs, who were empowered under Local Government Ordinance, Food Laws etc to check any kind of violations, it added. It was observed that focal institutions do existed, however, their performance was required to be reviewed.
Another interesting point about the summary is about the amendment in the Police Order as under the law the provincial government could not amend it on its own. Legal circles said that under section 184 of the Police Order the provincial government could amend the Order with the approval of the chief executive of the country.
Moreover, they said, the Police Order was placed in the Sixth Schedule to the Constitution and now no amendment could be made in it without the approval of the president.