PESHAWAR: The Peshawar High Court (PHC) on Monday observed that after the merger of erstwhile Federally Administered Tribal Areas (Fata) with Khyber Pakhtunkhwa, the governor had no power to interfere in matters of merged districts.
A division bench comprising Justice Ikramullah Khan and Justice Ibrahim Khan suspended the governor’s notification issued on February 6, 2018, about the formation of the four-member advisory board for the merged districts.
The bench sought a reply from the principal secretary to the governor and federal government before next hearing.
The order was passed in a writ petition filed by Javed Iqbal, from the tribal district through his lawyer Shoaib Raza.
The lawyer submitted before the bench that Governor Shah Farman had constituted an advisory board for the tribal districts comprising the senior elders with knowledge of governance in the former Fata.
A notification issued from the Governor’s House said Umar Khan Afridi would chair the board. The members will include Rustam Shah Mohmand, Mir Laiq Shah and Sang-e-Marjan.
The lawyer argued that through the Constitution (25th Amendment) Act, 2018, the seven tribal agencies and six Frontier Regions were merged with Khyber Pakhtunkhwa, and Article 247, through which those areas were governed in the past, was omitted from the Constitution.
Previously, the governor used to act as an agent of the President of Pakistan. However, after the omission of Article 247, the governor no longer has the powers to do so.
During the arguments, Justice Ikramullah Khan questioned that how could the governor issue such a notification when he no longer had constitutional powers to issue directives about the former Fata.
The lawyer argued that the board would make recommendations to the government on issues arising out of the merger of the erstwhile tribal areas into Khyber Pakhtunkhwa.
He said the governor had given a task to the advisory board to address and make suitable recommendations to propose a comprehensive dispute resolution mechanism for resolving civil and criminal disputes in accordance with the local customs and traditions to make the recommendation for the enforcement of decisions of the jury or jirga.
He said the board was also tasked with creating a law-enforcement force exclusively for the erstwhile Fata by organising short and long term training for the existing Levies and Khassadars and to operate within the board parameters of the new government schemes by instituting such mechanism that is compatible with the norms, values and traditions of the area.
The board would ensure that the new system or administration did not result in long delays of court cases and those decisions are made expeditiously within a time frame and the centrepiece of the new system will be to retain the fundamental principles that guided decisions making in the former tribal areas.
The board would also ensure respect to the aspirations of the people of the tribal area by not imposing a system that will cause more hardships, agony and adversely affect the security environment.
The advisory board would take steps to hold the local body’s elections as soon as possible and ensure that these institutions contribute to the formulation and execution of the development scheme.
The lawyer stated that like other areas of Khyber Pakhtunkhwa the executive authority in the merged tribal districts vested in the provincial government, including the chief minister and cabinet, under Article 129 of the Constitution.
Supreme Court bench headed by then chief justice Saqib Nisar had pronounced a judgment in the appeal filed National Commission on the Status of Women (NCSW) through its chairperson, in which the apex court had ruled in clear terms that the operation of jirgas/panchayats, etc violated Pakistan’s international commitments under the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and Convention for Elimination of Discrimination Against Women which place a responsibility on the State of Pakistan to ensure that everyone has access to courts or tribunals, and they are treated equally before the law and in all stages of procedure in courts and tribunals.
