PHC detailed judgement on Fata regulation: Commissioners’ decisions to be void ab initio after 30th

PESHAWAR: Declaring the Fata Interim Governance Regulation 2018 as ultra vires of the Constitution, the Peshawar High Court (PHC) has ruled that after 30 November any decision of civil or criminal nature by the commissioners would be void ab initio (illegal from the very beginning).

“Allowing the writ petition, the court declared the notification issued on May 29, whereby Fata Interim Governance Regulation 2018, was promulgated, as ultra vires of the Constitution, to the extent of allowing the commissioners to act as judges, council of elders deciding civil and criminal matters and Constitution of Qaumi Jirga,” stated the detailed judgment authored by Chief Justice Waqar Ahmad Seth. The second judge in the bench was Justice Mussarat Hilali.

However, the top court of the province had given one month time from the date of judgment October 30 and declared that any decision of civil or criminal nature would be void ab initio.

“Indeed the separation of executive from the judiciary is a hectic exercise, which should have been done before the 25th Amendment (Act No.XXXVII of 2018) therefore, we feel it appropriate to give some time to the concerned (government) to have the same exercised, but not later than one month from the date of judgment as any law/regulation made or action taken in violation of principles contained in Article 25 of Constitution is liable to be struck down and same is the power with this court,” the court explained in the judgment.

Furthermore, it was added that mere existence of a tribal society or a tribal culture does not by itself creates a tribal block in the way of enforcing ordinary procedure of criminal law or civil law, trial and detention, which is enforceable in the entire country.

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.

It allows the commissioners to act as judges, the council of elders to decide civil and criminal matters and also the constitution of Qaumi Jirga, which is against the Constitution. In the 11-page judgment, the high court quoted and gave references of the judgments of the Supreme Court regarding separation and independence of the judiciary from the executive.

“After the 25th Amendment (Act No.XXXVII of 2018) Article 247 has been omitted and the concept of Fata/Pata stand abolished as if they were not at all. Indeed vide the impugned regulation it has been provided with an interim system in order to maintain peace and good governance for running the affairs of Federal Administered Tribal Areas, but the judgments of the apex court, which are in the field and guidance for all the time to come, therefore, no deviation from this celebrated guidance can be made,” the judgment stated.

It was explained in the judgment that the functions of judicial work including settlement of civil and criminal disputes had to be done by a judge and in the entire country the same is being done.

“In view of the judgments/precedents where under the separation of the judiciary has been ordered from the executive and the trichotomy of power has been defined there exist no reasons whatsoever to obtain the job from the executive, in this respect. The duty of a judge is to administer the law, whereas the legislature is to formulate a law,” the court observed, adding that the moment 25th Amendment (Act No.XXXVII of 2018) was introduced, the job of a decision in criminal as well as civil disputes is to be done by a judge and not executive, as has been done by the impugned regulation 2018.

It was also stated that both the Additional Attorney General for Pakistan, Manzoor Khalil and Additional Advocate General Waqar Ahmad in their arguments in the case had stated that after the 25th Amendment to the constitution, the Fata and Pata shall be governed by the constitutional provisions and laws applicable in the province.

It added that by now the constitutional requirement was a separate and independent judiciary from the executive and as such any powers exercised by the executive, which came within the domain of judiciary/judge the same would be a nullity in the eye of law.