Commissioners role as judge in tribal districts

PESHAWAR: The Peshawar High Court (PHC) on Tuesday declared Fata Interim Governance Regulations 2018 allowing the commissioners in tribal districts to act as judges ultra vires of the Constitution and directed the Khyber Pakhtunkhwa government to ensure setting up of regular courts in tribal districts within 30 days.

A division bench comprising Chief Justice Waqar Ahmad Seth and Justice Musarrat Hilali announced the decision after arguments in a writ petition challenging the regulations allowing the commissioners in tribal districts to act as judges and the council of elders to decide civil and criminal matters in violation of the Constitution.

Additional Attorney General of Pakistan, Manzoor Khalil, represented the federal government and Additional Advocate General, Waqar Ahmad, represented the KP government in the case.

The writ petition was filed by Ali Azeem Afridi, a lawyer, who had 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 petitioner said the impugned regulation mentioned that agencies in Fata were declared tribal districts and tehsil and frontier regions subdivisions.

The nomenclature of the political agent was changed as deputy commissioner and additional political agent and assistant political agent as additional commissioner and assistant deputy commissioner.

The petitioner said all those administrative officers had been empowered to act as judges in their respective capacity.

He questioned that after the repeal of the Frontier Crimes Regulation, how the commissioners and deputy commissioners were again empowered to act like judges, which was a violation of the Constitution.

The petitioner said in sheer disregard for the law, the deputy commissioner had been allowed to constitute a council of elders for settling disputes of civil nature, while a likeminded individual called a judge was allowed to form a council of elders for deciding disputes of criminal nature.

He said the regulation provided for the executive to be considered part of the judiciary, which was against Article 175 (3) of the Constitution after repeal of the FCR.

Additional Advocate General, Waqar Ahmad submitted before the bench that Fata Interim Governance Regulation, 2018 was only for the interim setup till completion of the establishment of regular courts in tribal districts. However, he informed the bench that two committees including Apex Committee at the provincial level and Task Force at federal government level had been formed for extension of regular laws and setting up of the courts and other system.

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

It said that with the passage of time, the same laws as are in force in the rest of the country would be enforced in the tribal district and the same judicial system would be established.