The Peshawar High Court in an important judgment on April 29 declared the functioning of executive magistrates in the Provincially Administered Tribal Areas (Pata) as unconstitutional. A bench comprising Justice Waqar Ahmad Seth and Justice Ms Irshad Qaiser directed the provincial government to make suitable amendments in the Nizam-e-Adl Regulation (NAR) 2009, under which the executive magistracy was restored in Pata so as to bring it in line with the Constitution.

The bench issued the directives while disposing of six writ petitions challenging the functioning of executive magistrates in Pata comprising Malakand division along with some other provisions of the NAR. The bench in its short order directed that the government should make suitable amendments in the NAR to end judicial powers assigned to executive officers.

The executive magistracy was abolished by then military government of Pervez Musharraf in Aug 2001 by promulgating the Code of Criminal Procedure (Amendment) Ordinance 2001. While the executive magistracy remained non-existent in rest of the country the then government in 2009 considered it appropriate to restore it in Pata. Through the NAR 2009 the Code of Criminal Procedure (Amendment) Ordinance 2001 was repealed. In the light of that law the provincial government issued notification and revived the former system, including the offices of district magistrate, additional district magistrate, sub-divisional magistrate and other executive magistrates.

Just like the Federally Administered Tribal Areas (Fata), the Pata has also been given special status in the Constitution of Pakistan and laws enacted by the parliament and provincial assembly are not automatically applicable to those areas.

Under Article 247 (4), the governor, with prior approval of the president, may, with respect to any matter within the legislative competence of the Provincial Assembly make regulations for the peace and good government of a Provincially Administered Tribal Area or any part thereof, situated in the province. Furthermore, under Article 247 (3) of the Constitution no Act of parliament or the provincial assembly applied to Pata unless the governor, with the approval of the president, issue directives in this regard.

Advocate Qazi Zakiuddin, who also appeared in two of the petitions, told Dawn that the governor was not competent to promulgate a regulation for Pata which was not in legislative competence of the provincial assembly. In instant cases, he said that as even the provincial assembly was not competent to repeal the Code of Criminal Procedure (Amendment) Ordinance 2001, as it was a federal law, therefore the same could not be repealed through the NAR.

With this important judgment the Pata and the laws in vogue there especially the NAR 2009 have come to limelight. It has also generated debate in the legal circles about the pros and cons of NAR, which was promulgated by the Khyber Pakhtunkhwa governor in April 2009 at a time when the militants were calling shots in Malakand region and regular courts had stopped functioning in several districts there.

The regulation, which was at that time termed as a key to restoration of peace in Swat by the provincial government, had replaced the Shariah Nizam-e-Adl Regulation of 1999, which was introduced when Nawaz Sharif was the prime minister and Sardar Mehtab Ahmad Khan the chief minister of Khyber Pakhtunkhwa (then called NWFP).

The NAR 2009 is applicable to Pata except the tribal area adjoining Mansehra district and the former State of Amb. Malakand division, which is included in Pata, has seven districts – Swat, Buner, Shangla, Chitral, Malakand, Upper and Lower Dir.

The regulation provides for setting up of five categories of courts including: Court of Zila Qazi (district and sessions judge); izafi zila qazi (additional district and sessions judge); aala ilaqa qazi (senior civil judge); ilaqa qazi (civil judge); and, executive magistrate. The executive magistrate is empowered to deal with those cases under the Pakistan Penal Code which were punishable up to three years imprisonment; local and special laws; cases pertaining to breach of peace and public nuisance; and, cases pertaining to deviations of licences and permits under relevant laws.

The law also provided two appellate forums, Darul-Darul Qaza and Darul Qaza, which would operate in Malakand region. The Darul-Darul Qaza is equivalent to that of the Supreme Court and the Darul Qaza is similar to the appellate jurisdiction of the high court.

The said law also focuses on speedy disposal of cases providing that a qazi would be bound to decide a civil case within six months and a criminal case within four months. A qazi who fails to comply with this schedule would be issued a letter of displeasure and adverse remarks would be added in his service record if he receives three letters in a year.

Barrister Dr Adnan Khan, who was one of the petitioners before the high court in the present cases, told Dawn that under Article 25 of the Constitution all citizens were equal before law and entitled to equal protection of law. He said that the inhabitants of Pata should be treated at par with that of rest of the country; therefore, when executive magistracy was non-functional in other areas it could not be applied to Pata.

Legal experts believe that the high court’s verdict had come as a blow to the bureaucracy, which was always fond of exercising judicial powers. Following abolition of the executive magistracy in 2001, successive governments had tried to revive the erstwhile system, but failed. Two former PHC chief justices, Justice Mian Shakirullah Jan and Justice Tariq Pervez Khan, had declined to give concurrence to the recommendations by the provincial government to assign judicial powers to executive officers under CrPC.

Published in Dawn, May 4th, 2015

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