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September 7, 2018

Judicial powers in tribal districts: PHC seeks assistance of AG, advocate general


September 7, 2018

PESHAWAR: The Peshawar High Court (PHC) on Thursday sought legal assistance from the attorney general (AG) of Pakistan and KP advocate general in a petition challenging the award of judicial powers to the assistant commissioner, deputy commissioner and commissioners in tribal districts under the Fata Interim Governance Regulations 2018.

A division bench comprising Justice Qaiser Rashid Khan and Justice Muhammad Ayub issued notice in a writ petition seeking the court order to declare the exercise of both the executive and judicial powers by the assistant commissioners, deputy commissioners and commissioners as illegal, without jurisdiction and in violation of the Article 2 (A) and 175 (3) of the Constitution.

The petition was filed by Prof Anwar Shah, an academician from Bajaur tribal district, through his lawyer Muhammad Farooq Afridi.

The petitioner requested the court to direct the respondents including president of Pakistan through principal secretary, Khyber Pakhtunkhwa government through chief secretary and federation through cabinet division, tribal districts administrations to progressively separate the judiciary from executive in the newly merged tribal districts in Khyber Pakhtunkhwa being requirement of Article 175(3) and the Article 2 (A) of Constitution for independence of the judiciary.

The lawyer argued the administration of justice system by introducing the Fata Interim Regulations in all the newly merged districts in KP is unconstitutional. He pointed out that Article 175 (3) of the Constitution emphasises the separation of the judiciary from the executive within 14 years after the commencement of the Constitution.

It was submitted in the petition that the provision of Article 175 (3) is mandatory but the respondents badly failed to implement it and separate the judiciary from the executive even after the merger of the Fata into KP.

It said that the independence of the judiciary is the cardinal principal pronounced in Article 2 (A) of Constitution, but the respondents failed to take appropriate measures to bring provisions of the Fata Interim Governance Regulations 2018 in conformity with the Constitution and findings already determined by the superior courts by separating the judiciary from the executive.

“The independence of the judiciary and the impartial judicial practice are interrelated concepts. The judiciary cannot claim neutrality and independence unless it is insulated and detached from executive and administrative influence in all respect including in terms of the appointment, tenure and security of service as well,” the petitioner stated in the petition.

The petitioner has also sought an order of the court for assistant commissioner Khar, Bajaur district, to implement the order of the FCR tribunal passed in 2016. However, the petitioner had been fighting his legal battle for execution of a decree about property decided in his favour since 2012.

He said that the APA Khar, now called assistant commissioner, failed to implement the decree even after the direction of the Fata Tribunal and asked the petitioner to resolve the case himself.

The petitioner said that despite direction for implementation of the order of FCR Tribunal, the advice to the petitioner to take the law into his hands and to implement the order by himself by a forum performing judicial functions is beyond understanding.

He said that if these practices continued and the respondent contemnor is not penalised for their contemptuous act, this would be having a bad impression in the eyes of the public.

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