PESHAWAR: The Peshawar High Court has ruled that any judicial power exercised by the executive officers in the tribal districts after the enactment of the 25th Constitutional Amendment were unconstitutional and against the principle of separating the judiciary from the executive.

A bench consisting of Chief Justice Waqar Ahmad Seth and Justice Mussarat Hilali, which had declared unconstitutional on Oct 20 several provisions of the Fata Interim Governance Regulation (FIGR), 2018, has ruled that any decision of civil or criminal nature under that law would be void after a month of the said judgement.

“By now the constitutional requirement is a separate and independent judiciary from the executive and as such any powers exercised by the executive, which come within the domain of judiciary/judges, the same would be nullity in the eyes of law,” it declared in the detailed judgment.

Govt’s move in this respect violates spirit of separating judiciary from executive, rules court

The bench observed that the FIGR was promulgated by the government to cover up its inefficiency of not formulating any formula for separation of judiciary and the executive when the Constitution (Twenty-Fifth Amendment) Act was passed.

“The moment 25th Amendment (Act No XXXVII of 2018) was introduced, the job of a judgement/ decision in criminal and civil disputes is to be done by a judge and not executive, as has been done by the impugned Regulation, 2018,” it declared.

The bench had last month accepted a petition filed by lawyer Ali Azim Afridi and pronounced a short order.

The petitioner had challenged the FIGR on multiple grounds requesting the court to declare the same unconstitutional, especially the exercising of judicial powers by executive officers in tribal districts, which he claimed was a violation of Article 175 of the Constitution.

Through the FIGR promulgated by the president of Pakistan in May, the colonial era Frontier Crimes Regulation was repealed. However, the judicial powers continued to be assigned to the executive officers including political agents (now deputy commissioners) and assistant political (now assistant commissioner).

“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 to have the same exercised but not later than one month, from the date of the judgement, as any law/ regulation made or action taken in violation of principles contained in Article 25 is liable to be struck down and same is the power with thus court,” the bench declared.

It added that the mere existence of a tribal society or a tribal culture didn’t create a hurdle to the enforcement of an ordinary procedure of criminal law or civil law, trial and detention, which was enforceable in the entire country.

“In view of the above, we while allowing the writ petition as prayed for, declared the notification dated 29.05.2018 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; constitution of qaumi jirgas; modified applications of Chapter VIII and CLII of the Code of Criminal Procedure for security; Third schedule (of the regulation); administered areas, and after one month from the date of judgment any decision of civil or criminal nature would be void ab-initio,” it ruled.

The bench cited several Supreme Court verdicts in its detailed judgement.

It declared: “the command of Constitution and above cited judgements/ precedents, the legislature was required to have done the exercise much earlier, as has been done by way of 25th Amendment (Act No XXXVII of 2018) and for doing the same it was the duty of the executive to have formulated the formula of separation of each and every category for the purposed of smooth running of the daily functions, but unfortunately no preparation was done and in order to cover up the said inefficiency, the government had to promulgate the impugned Fata Interim Governance Regulation, 2018.”

The bench ruled that the separation of judiciary from the executive and others was not only in the upper hierarchy/ superior judiciary rather the same began from a very lower level i.e. magistrates and civil judges.

It added that the functions of judicial work i.e. settlement of civil and criminal disputes had to be done by a judge and in the entire country the same was being done.

The bench ruled that in view of the Supreme Court judgements and precedents, where under the separation of judiciary had been ordered from the executive and the trichotomy of power had been defined, there existed no reason whatsoever to assign work to the executive in this respect.

Published in Dawn, November 13th, 2018