SC adjourns petitions challenging 25th Constitutional Amendment

ISLAMABAD: The Supreme Court on Thursday observed that Parliament with its supreme powers has merged the tribal areas into the Khyber Pakhtunkhwa province through the 25th Constitutional Amendment.

A three-member bench of the apex court, headed by Justice Umar Ata Bandial, heard a constitutional petition filed by a large number of elders and Maliks of the former tribal areas, challenging the 25th Amendment to the Constitution through which the tribal areas were merged into the province of KPK. Justice Umer Ata Bandial observed that important legal questions are before the bench, hence they were thinking of constitution of a larger bench. The court directed both the federal government and the government of KP to submit replies about the federating units and adjourned the case till February.

Justice Umer Ata Bandial observed that it is the stance of the petitioners that instead of merging the tribal belt into the KP province, it could have been established as a separate province as they are now in minority, and cannot enjoy their traditional freedom. Fata was a part of the Federation, hence the Parliament with supreme power has merged it into the KP province, Justice Bandial observed adding that the apex court has a very limited power to measure the constitutional amendment. Justice Umer Ata Bandial, however, observed that 400 peoples' representatives, elected to Parliament, also included people from the tribal areas. The Chief Justice-designate further observed that the foundation of the Constitution is democracy, adding that the bench is thinking about forming a larger bench as the case relates to the Constitution and they want to see the structure of Federation under the Constitution.

Justice Mansoor Ali Shah, another member of the bench, observed that as per the petitioners, the status of a federating unit cannot be changed adding that the makers of the Constitution kept the federating units as separate provinces to keep their culture and status intact. Waseem Sajjad, however, contended that merging the federating units, as well as its bifurcation, are two different issues. He contended that neither Fata was a part of any province nor it had representation in the provincial assembly, adding that procedure for making one or more administrative units of a province is available, therefore, the bifurcation of Fata was also possible.

Advocate General KP Shumail Butt argued that the petitioners are trying to raise a political question before the honorable court, which is not the mandate of SC. He further argued that whether making Fata a part of KP or giving it the status of an independent province as demanded by petitioners is outside the constitutional mandate of the court and is too political to be resolved judicially in reviewing a constitutional amendment.

He further submitted that neither Article 247(6) was a super constitutional provision nor was it part of the salient features of the Constitution as the very article is couched in a permissive language allowing the merger of FATA or changing its tribal status.

Meanwhile, the court adjourned the hearing until February after directing the Federal and Government of KP to submit replies regarding the federating units. The elders and Maliks of former Fata had challenged the 25th Constitutional Amendment before the court whereby the tribal areas were merged into the KPK. The petitioners had contended that the amendment was passed by violating the basic structure of the Constitution and was therefore illegal. They had further submitted that through the amendment, the distinct character of Fata as a unit of the Federation was destroyed. They had contended that Fata has lost its identity as well as 12 seats in the National Assembly and 8 seats in the Senate. They had further submitted that the amendment deviated from the Objectives Resolution of the Constitution which could not be permitted.

Similarly, the petitioners had recalled that Quaid-e-Azam, the Father of the Nation, had given a commitment to the Fata that no change would be made in their system of governance or way of life without their consultation.