Judicial powers for executive in tribal districts interim arrangement, PHC told

PESHAWAR: The federal government has said the judicial powers to commissioners and deputy commissioners in the tribal districts after their merger with Khyber Pakhtunkhwa have been entrusted till the establishment of regular courts there.

In its reply submitted in the Peshawar High Court (PHC) in a petition challenging the presidential notification, which had allowed the commissioners to act as judges in the tribal areas after the merger with Khyber Pakhtunkhwa, the Law and Justice Division explained that the said system was interim arrangement to fill the vacuum of administration and maintenance of peace in the merged tribal districts.

It said with the passage of time, the same laws would be enforced there as are in the rest of the country and the same judicial system would be established. "It is submitted that after the merger of Fata with KP and repeal of the Frontier Crimes Regulation 1901, a vacuum has occurred in the tribal areas. And in order to fill the same, the Fata Interim Governance Regulations 2018 was promulgated on the initiative and summary of the Ministry of States and Frontier Regions [Safron] to provide an interim system of administration of justice and maintain peace and good governance," the ministry submitted in the comments.

The ministry submitted that in view of the wishes of the tribal people and government commitment to mainstream Fata, a committee was constituted, which after thorough deliberations suggested various measures to achieve the objectives.

It said an act was passed to extend the jurisdiction of the Peshawar High Court and Supreme Court of Pakistan to the tribal areas. The constitutional amendments have already been finalised on the initiative of the Safron.

As per the regulations initiated by the ministry, the offices of Political Agent and Assistant Political Agent have been changed and redesignated to deputy commissioner and assistant commissioner and a judge has to be appointed in every tribal district for adjudication of criminal cases. A council of elders would act as jury only on the pattern of the developed legal system. The Law and Justice Division stated that other features of the regulations are the provisions Code of Criminal Procedure, 1989 regarding security and provision of bonds have been completely applied to Fata, all provisions involving joint responsibility, etc have been omitted, powers of review have been given, right of appeal to high court is provided and 119 laws as enforced in the country are applied to Fata.

The writ petition was filed by Ali Azeem Afridi who 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. The lawyer submitted that the impugned notification allowed the commissioners to act as judges, the council of elders to decide civil and criminal matters and also the constitution of Qaumi Jirga was in violation of the constitution.

The petitioner said about the proper administration of justice, it was provided in the notification that the DC, additional DCs and ACs may act as judges in their respective capacity. He stated the DC had 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.