The Supreme Court on Wednesday decided to form a larger bench to hear petitions against the 25th Amendment regarding the merger of tribal districts (formerly FATA) into Khyber Pakhtunkhwa (KPK). A three-member SC bench comprising Chief Justice Umar Ata Bandial, Justice Muhammad Ali Mazhar and Justice Ayesha A Malik heard the case filed by Malik Anwarullah Khan regarding declaration of 25th Constitutional Amendment as Ultra Vires of the Constitution of Pakistan, 1973.
During the course of proceedings, the bench remarked that the petitioner had raised the question of not changing the status of federal units as enshrined in the Constitution. The bench also asked what were the powers and limits of the Parliament regarding amendments in the constitution?
Attorney General Khalid Jawed Khan said it was important to determine the extent to which parliament could amend the constitution. He said that if the integration of an area deprived the residents of their rights then the question of federal units could arise.
The Chief Justice asked whether Federally Administered Tribal Area (FATA) merger affected the representation of tribal residents in the Provincial and National Assemblies.
The Attorney General said that the major issue after the 25th amendment was the seats of FATA representatives in the National and Provincial Assemblies. FATA representatives supported the 25th Amendment, he added.
He said that the tribal areas could be sealed by an executive order under the constitution. The jirga was also consulted before the merger of FATA, he added.
Justice Muhammad Ali Mazhar asked what was the real problem with the merger of FATA? Chief Justice Umar Ata Bandial said that the people of FATA had stated that their culture was different from Khyber Pakhtunkhwa.
The people of FATA had come to the conclusion that the protection given to them by the constitution had been withdrawn through amendment, he added. Justice Ayesha Malik asked whether the Parliament had sought the opinion of the people of FATA while withdrawing the powers conferred on them under the Constitution.
The Attorney General said that Article 257 of the Constitution stated that if Kashmir wanted to remain an independent state, the opinion of Kashmiris should be sought.
On this, Justice Muhammad Ali Mazhar remarked that Kashmir issue and background was completely different. Chief Justice Umar Ata Bandial said that democracy was a fundamental part of the constitution and it was stated that the purpose of the 25th amendment was to bring democracy in the tribal areas. The Khyber Pakhtunkhwa Advocate General said that the Supreme Court would exceed authority if it annulled the amendment passed by the Parliament.
The Chief Justice said that the bench would hear detailed arguments on the answers to all these questions. The case would be heard by a larger bench after the month of Ramadan, he added. Later, the court adjourned the hearing of the case till after Ramadan.
