Separation of power: FATA political admin exercising illegal authority

AAG contends that the PHC does not have jurisdiction to decide on matters in the tribal belt

PESHAWAR: With political agents of the tribal areas considered as ‘kings’, a man on Wednesday challenged the execution of these broad powers — especially those of the judiciary by a member representing the executive — in the tribal areas.

“Judicial and executive authority cannot be wielded by one hand. It is unconstitutional and illegal,” claimed Professor Anwar Shah, a resident of the Bajaur Agency in the Federally Administered Tribal Areas (Fata), who had filed his petition in the Peshawar High Court (PHC) through his lawyer Muhammad Farooq.

A two-judge bench of PHC, comprising Justice Syed Afsar Shah and Justice Muhammad Ayub, heard arguments of the petitioner’s lawyer.

In his arguments, the petitioner’s lawyer stated that justice being provided in Fata was illegal since it was not being administered as per article 175 of the Constitution, which provides the separation of executive organs of the state from the judiciary.



He added that through provisions listed under this article, it was mandatory to keep the two branches separate. However, he contended that the government had thus far failed to implement it in Fata.

The lawyer went on to argue that the government had failed to conform the Frontier Crime Regulation (FCR) with the Constitution.

The petitioner also challenged the Fata FCR tribunal, contending that retired bureaucrats with typical bureaucratic mentality have been appointed to administer justice in the tribunal, which is against the independence of the judiciary as provided under Article 2 (A) and Article 175 (3) of the constitution.

He urged the court to declare the judicial power utilised by political agents as illegal, without jurisdiction, and in violation of the Constitution.



Farooq also asked the court to declare the appointment of retired bureaucrats to the Fata tribunal as illegal and to separate the Judiciary from the executive in Fata.

“The use of both executive and judicial powers by the political agents has made the political agents the powerful kings of old days with unbridled powers,” the lawyer told the court.

However, the Additional Advocate General (AAG) Mujahid Ali questioned the maintainability of the petition.

He pointed out to that first they had to check whether a petition of this nature could be heard by the high court, whether the court has jurisdiction in Fata. At this, the court told the AAG to provide detailed arguments on the maintainability of the petition at the next hearing of the case.

Published in The Express Tribune, April 12^th, 2018.