Judges power for commissioners: PHC seeks AGs assistance in case

PESHAWAR: The Peshawar High Court (PHC) on Wednesday put on notice the Attorney General of Pakistan and Advocate General of Khyber Pakhtunkhwa to assist the court in legal questions raised in a writ that had challenged the presidential notification which had allowed the commissioners to act as judges in the tribal areas after the merger with Khyber Pakhtunkhwa.

A two-member bench comprising Justice Qaiser Rashid Khan and Justice Ikramullah Khan issued the notice to the law officers to assist the court on the next hearing of the petition.

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.

During the course of the hearing, the lawyer submitted that the impugned notification allows the commissioners to act as judges, the council of elders to decide civil and criminal matters and also the constitution of Qaumi Jirga.

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.

It said that now tribal agencies in Fata are termed as tribal districts whereas tehsils and Frontier Regions are called sub-divisions. Besides, it noted that the nomenclatures of the office of the political agent and that of additional political agent and assistant political agent were also changed.

The petitioner said about the proper administration of justice, it was provided in the notification that the deputy commissioner, additional deputy commissioners and assistant commissioners may act as judges in their respective capacity.

It is also provided that the deputy commissioner may pardon an accomplice in lieu of Section 337 of the Criminal Procedure Code 1898.

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

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 the ground to the petition, it was stated that the law violated the provisions of the constitution guaranteeing fundamental rights, independence of the 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 the judiciary. It argued that the law did not permit an individual to arrogate unto himself the roles of a complainant, prosecutor, judge and executioner.

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.