The federal government has raised objections over a petition challenging the 25th Constitutional Amendment that paved the way for the merger of erstwhile Federally Administered Tribal Areas (Fata) with the Khyber-Pakhtunkhwa (K-P) province in 2018.
Additional Attorney General Sohail Mahmood filed a reply on behalf of the federal government, requesting the apex court to dismiss the petition as non-maintainable.
The reply said the main grievance of the petitioners is that the people of former Fata are deeply dissatisfied and aggrieved by the act of merger as they on the basis of an undertaking given by the Founder of Nation Quaid-i-Azam Mohammad Ali Jinnah, voluntary agreed to become part of Pakistan.
According to the petitioners, neither were they consulted before introducing the 25th Amendment nor any jirga or referendum was held as mandated under sub article (6) of Article 247 of the Constitution. “[They say] even the Fata Reform Committee did not consult the tribal jirgas.”
The petitioners claim that the objective resolution is the ground norm of the Constitution and the deletion of Fata is violation of the objective resolution; resultantly, the Constitutional 25th Amendment ultra-vires the Constitution and is liable to be struck down.
The reply said by employing any canon of interpretation or enlarging the scope of the fundamental rights by relying on a liberal interpretation, the said consultation – referendum or jirga – cannot be brought within the meaning of fundamental rights as envisaged in Chapter 1 part II of the Constitution.
It said in pith and substance the grievance of the petitioners is that no jirga or referendum was held as mandated under the omitted sub Article (6) of Article 247 of the Constitution nor the government consulted the petitioners and even the Fata Reform Committee did not consult the tribal jirgas.
"Thus, for all intent and purposes the assertions in the petition constitute a question of fact, ie, whether or not any jirga was held or the petitioner were consulted or not and or only a small number of people were consulted by the Fata Reform Committee," said the federal government in its reply.
It added that the questions cannot be determined without involving voluminous evidence. It is a settled principle of law that with regard to the exercise of jurisdiction under Article 184 (3), the court should not enter into a disputed question of fact in cases where voluminous evidence is required.
The reply said the Constitution refers to jurisdiction under Article 184 (3) as the original jurisdiction of the court. It stated that that original jurisdiction is also referred to as an extraordinary jurisdiction.
“The Supreme Court may invoke jurisdiction under Article 184(3) of the Constitution in respect of matters of public importance which require the enforcement of any of the fundamental rights; thus, these two stipulated preconditions are sine qua non for the exercise of jurisdiction.
“Moreover, as there is no appeal against an order/judgment passed by this court in exercise of jurisdiction under Article 184 (3) every precaution should be taken to strictly act within the precise parameters set by the Constitution.
"In nutshell, in the light of the above said pronouncement by this Honourable Court, without touching the merits of the case, it is submitted with utmost respect that both the mandatory requirement as envisage under Article 184 (3) are lacking in the petition; therefore, the petition in hand is not maintainable before this Hon’ble Court," the government requested the SC.
When a three-judge bench led by Justice Umar Ata Bandial on Monday took up petition, the counsel for petitioners, Khawaja Haris, requested the court to give him some time to respond to the objections raised by the government. The bench later adjourned hearing of the case till after Eidul Fitr.
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