PHC issues notice to federal govt in petition on Fata’s judicial powers

PESHAWAR: The Peshawar High Court (PHC) on Wednesday put on notice the federal government in a writ petition seeking withdrawal of judicial powers from the executive in federally administered tribal areas (Fata).

A two-member bench comprising Justice Syed Afsar Shah and Justice Muhammad Ayub Khan also asked lawyer for the petitioner and Additional Advocate General Mujahid Ali to assist the court on the next hearing about whether or not the petition is maintainable in the high court.

The bench issued a notice in the petition filed by an academician from Bajaur Agency. He had challenged the judicial powers of Fata's executive officers under the Frontier Crimes Regulation (FCR) as well as the appointment of retired bureaucrats as chairman and member of the FCR Tribunal.

Professor Anwar Shah, a teacher of mathematics in the Bajaur Degree College, had filed the petition through his lawyer Muhammad Farooq Afridi. He sought orders to declare illegal and unconstitutional the exercising of judicial powers by political agents, assistant political agents and commissioners under the FCR.

During the hearing into the case, the lawyer argued that exercise of judicial powers by political authorities was in violation of Article 175(3) of the Constitution, which guaranteed the separation of the judiciary from the executive.

The lawyer also pointed out that appointment of retired bureaucrats to the FCR Tribunal, the third and last judicial forum under FCR, was a violation of Article 175(3) of the Constitution. He also sought the court's directions for the respondents, including the federal government, to progressively separate judiciary from the executive in Fata as a constitutional requirement.

The lawyer said that Article 175(3) of the Constitution emphasised on the separation of the judiciary from the executive progressively within 14 years of the enforcement of the Constitution but in Fata, the judiciary hadn't been separated from the executive even 45 years after the Constitution was put into effect. He said the independence of the judiciary was the cardinal principle of the Constitution spelled out in its Article 2(A) but

the respondents had failed to take appropriate measures to bring the FCR provisions in conformity with the Constitution and findings already arrived at by the superior courts by separating the judiciary from the executive.

It was stated in the petition that the petitioner had the power of attorney of his father, Gul Badshah, in the "Qazi Gul versus Gul Badshah" case about a property dispute. It added that the case was initiated in the court of the assistant political agent, Khar (Bajaur), and the trial court had passed an order in favour of the petitioner on March 6, 2008.

The petition said the respondent (Qazi Gul) had filed an appeal against the order of the APA but the appellate authority had maintained the order of the trial court on Jan 7, 2010. It added that the said respondent had filed a revision petition against the orders of two courts below and the FCR Tribunal had had dismissed that petition on March 19, 2011, followed by a review petition, which was also dismissed on April 30, 2012.

The petitioner said that the issue had been pending in the court of the APA for execution since April 30, 2012, but the APA and other respondents had been using delaying tactics by creating hurdles to the smooth execution of the order.

The petitioner requested the high court to direct Bajaur's political agent and APA to implement the March 6, 2008 order of the APA, which was upheld by the appellate authority as well as the FCR Tribunal.

The petitioner said the provision of Article 175(3) of the Constitution was mandatory but the respondents, including the federal government, had failed to implement it. The respondents in the petition are the Federation of Pakistan through secretaries of the cabinet, parliamentary affairs, law, and States and Frontier Regions divisions, KP government through chief and home secretaries, president of Pakistan through his principal secretary, KP governor through his principal secretary, FCR Tribunal through its chairman, and others.