The Supreme Court of Pakistan on Wednesday granted a petition submitted by Anwarrullah Afridi against 25th Amendment to the Constitution relating to FATA merger with Khyber Pukhtunkhwa for preliminary hearing. The petitioner has argued that Article 247 (6) of the constitution was not taken into account, while passing this legislation from the parliment. The Apex Court issued notices to MNAs and Senators from the tribal districts, including the Federal and KPK government.
The Supreme Court and High Courts of Pakistan have the authority of Judicial Review under Article 184 (3) and Article 199 of the Constitution of Islamic Republic of Pakistan. Under the doctrine of Judicial Review, the Judiciary has the powers to ascertain the constitutional validity of the laws and legality of decisions made by the public bodies. It is an exercise under which legislative and executive actions are subject to review by the Judiciary. It is concerned with constitutional validity of a law, be it a primary or secondary legislation; and constitutional validity of lawfulness of a decision, action or inaction of a person or a body in relation to a public function. According to the US Supreme Court Justice Iredell the provision of judicial review or authority is to decide a legislative enactment void.
Clause (6) of Article 247 of the constitution states the President may at any time, by order, direct the whole or any part of a Tribal Area shall cease to be a Tribal Area, and such order may contain such incidental and constitutional provisions as appear to the President to be necessary and proper. Provided that before making any order under this clause the President shall ascertain, in such a manner as he considers appropriate, the views of the people of the Tribal Area concerned as represented in a Tribal Jirga.
The Constitutional (Twenty-fifth Amendment) Act for FATA merger with Khyber Pukhtunkhwa was passed by the parliament on May 24 2018. It was assented by the President on May 31st 2018. The Act seeks to amend Article 1 of the Constitution, wherein the country’s territory is defined and FATA is mentioned as separate administrative unit from other four provinces. The Act also amends Articles 51 and 59, which concern the allocation of seats of National and Provincial Assembly for each area of Federally Administered unit. Articles 106, 155 and 246 are also amended and Article 247 repealed under this Act.
During discussion in the Senate on this legislation Senator Aurangzeb Khan supported the Bill. However, he raised certain legal and constitutional points of interpretation in terms of clause (3), clause (6) and clause (7) of Article 247. Senator Taj Muhammad Afridi supported the points raised by Senator Aurangzeb Khan and suggested that constitutional experts should be invited for further consideration of 25th Amendment Bill. Senator Usman Kakar did not support the Bill in terms of clause (3) of Article 247. His argument was that the important legislation should be taken into consideration during the tenure of next government and there should be a separate Judicial System for FATA.
Clause (3) of Article 247 states that no Act of Parliament shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs, and no Act of Parliament or a Provincial Assembly shall apply to Provincially Administered Tribal Areas or to any part thereof, unless the Governor of the Province in which the Tribal Area is located, so directs with the approval of the President Let us wait and see how the matter proceeds further under the doctrine of Judicial Review.