Notification allowing commissioners to act as judges in Fata challenged

PESHAWAR: The Peshawar High Court (PHC) was moved on Wednesday to challenge the presidential notification that allowed the commissioners to act as judges in the tribal areas after the merger with Khyber Pakhtunkhwa.

The writ petition was filed by Ali Azeem Afridi, a lawyer working in Peshawar.

He sought an order of the court to declare the impugned notification issued on May 29 and titled Fata Interim Governance Regulation, 2018 as ultra vires of the Constitution. It allows the commissioners to act as judges, the council of elders to decide civil and criminal matters and also constitution of Qaumi Jirga.

The Federation of Pakistan through Secretary Ministry of Law and Justice, President of Pakistan through his Principal Secretary, Ministry of States & Frontier Regions Division (SAFRON) through its Secretary, Government of KP through the Secretary Ministry of Law, Parliamentary Affairs & Human Rights, KP and Home and Tribal Affairs Department through its Secretary, were made parties to the petition.

It was submitted in the petition that for giving effect to the stated provision of the Constitution, it was provided that an interim system of administration of justice and maintenance of peace and good governance was expedient for running the affairs of Federally Administered Tribal Areas (Fata) through the Fata Interim Governance Regulation, 2018.

He pointed out that in Dr Asadullah’s case, it was held by the Supreme Court that “Principle of trichotomy of power is one of the foundational values of Constitution where-under all three organs of the State, namely the legislature, the executive and the judiciary are required to perform functions and exercise their power within their allotted sphere; such organs are exclusive in themselves with regard to respective domain or jurisdiction and cannot make inroad or transgress spheres of each other.”

It said that now agencies in Fata are termed as tribal districts whereas tehsils and Frontier Regions are called sub-divisions. Besides, it noted that the nomenclature of the office of the Political Agent and that of Additional Political Agent and Assistant Political Agent was also changed.

It said that for proper administration of justice, it is provided in the notification that the Deputy Commissioner, Additional Deputy Commissioner and Assistant Political Agents may act as judges in their respective capacity.

It is also provided that the Deputy Commissioner may tender pardon to an accomplice in lieu of Section 337 of the Criminal Procedure Code 1898.

The petition stated that the Deputy Commissioner has been allowed to nominate Council of Elders for settling disputes of civil nature, whereas a like-minded individual termed a “judge” is allowed to nominate Council of Elders for settling disputes of criminal nature.

“It is unprecedented to note that the Commissioners are to decide objections with regard to nomination of Council of Elders appointed by them and thereafter decide the fate of the matter in toto,” the petition stated.

Furthermore, it is also unparalleled to note that the Commissioner is empowered to take cognizance of an offence committed and grant bail to the accused after being arrested, detained or brought before the Deputy Commissioner or the Judge.

In ground of the petition it was stated that the law violated the provisions of the Constitution guaranteeing fundamental rights, independence of judiciary or its separation from the executive.

It submitted that no bureaucrat from the executive could be appointed to steer the functions well-connected with the affairs of judiciary. It argued that the law did not permit an individual to arrogate into himself the roles of a complainant, prosecutor, judge and executioner.