The government has challenged Peshawar High Court’s (PHC’s) April 7 ruling, wherein the court had suggested an amendment in Article 247 (7) of the Constitution, seeking extension in its jurisdiction to tribal areas.
In its verdict, the PHC had also stated that it does not have the authority to entertain cases related to Federally Administrated Tribal Areas (Fata).
The petition, filed by the Attorney General’s (AG’s) office under Article 185(3) of the Constitution, contended that the high court did not have the authority to issue specific direction to the Parliament, seeking amendments in Article 247 (7) of the Constitution with regard to extension of Supreme Court and high court jurisdiction to the tribal region.
According to Article 247(7) of the Constitution, “neither the Supreme Court nor a high court shall exercise any jurisdiction under the Constitution in relation to a tribal area, unless Majlis-e-Shoora (Parliament) by law otherwise provides.”
“The impugned judgment is against the principle of trichotomy of powers between the judiciary, parliament and executive” the petition stated.
It further said that the appropriate forum for recommending amendments in Article 247 (7) of the Constitution is the Parliament and not the high court. The petition states that the jurisdiction of the high court is specifically barred, therefore, the judgment was beyond the prescribed Constitutional jurisdiction.
“The amendment in Article 247(7) of the Constitution, for invoking jurisdiction of the high court and Supreme Court is a political question and the high court should have not entered into such political thicket,” it added.
The government also highlighted that the high court is not authorised to direct the Parliament with regards to amendments in Article 247 (7) of the Constitution on the touchstone of Article 2 A of the Constitution.
It further contended that PHC’s verdict was passed in excess of the jurisdiction set under Article 199 of the Constitution. The government also said that the judgment was against the provisions of Article 175(2) of the Constitution.
In its ruling, the PHC had observed that denial of fundamental rights to tribesmen, which are available to other citizens, has turned tribal areas into the most dangerous region in the country.
During the hearing in April, the high court had raised questions before a panel of senior lawyers, asking them to assist the court to decide if it was in its jurisdiction to hear cases from the Fata.
It had also questioned whether the high court was authorized to entertain cases regarding illegal detention of tribal residents, appeals against decisions of the Fata Tribunal, including both civil and criminal cases.
Published in The Express Tribune, July 27th, 2014.