The Supreme Court said larger bench will hear petitions against the 25th Constitutional Amendment to merge Federally Administered Tribal Area (FATA) in Khyber-Pakhtunkhwa. A three-judge bench, headed by Justice Umar Ata Bandial, on Thursday heard the petitions to declare the 25th Constitutional Amendment ultra vires of the Constitution.

FATA was merged in the Khyber-Pakhtunkhwa through the 25th Constitutional Amendment Act, 2018.

The bench directed Additional Attorney General Amir Rehman and Advocate General KP Shamail Butt to file reply of the concise statement of the petitioners.

During the proceeding, Khawaja Haris submitted that the apex court has recognised that the constitutional dispensation vouchsafing that Pakistan is a federation constitutes a salient feature of the Constitution, no amendment can be made in the Constitution that detracts from this salient feature, especially when such amendment subsumes a distinct set of units of federation into another unit of the federation.

He submitted that the FATA had opted to be part of Pakistan under separate agreements entered into by the tribal heads of each such component unit; each of the component units constitutes an independent unit of the federation and, at par with the other federating units, i.e., Punjab, Sindh, Khyber-Pakhtunkhwa, and Balochistan.

Haris stated that the impugned constitutional amendment, in effect, tantamount to effacing the federating units voluntarily acceding to the federation of Pakistan at the time of its creation as independent units, and subjecting their inhabitants to the will of the people inhabiting another federating unit, thereby, negating the very concept of the federation, is therefore, malafide in law and beyond the pale of authority conferred on the Parliament by Article 239 of Constitution.

He said in light of the Article 247(6) of Constitution the impugned amendment could not be effected without first obtaining the consent of at least 2/3 of the inhabitants of FATA as per their Riwaj and Custom.

“By invoking the provisions of Article 239 of Constitution, the boundaries of any federating unit could not be altered so as to include in it the entire territory of another federating unit.”

He maintained that there is no provision in the Constitution that permits, envisages or mandates even altering the limits of the tribal areas, what to speak of (sub) merging of any of the tribal areas in any other federating unit.

He further said that Article 239 only envisages “alteration” of the limits of a province, and not that of a tribal area. In the face of the provisions of erstwhile Article 247 and even in view of the language employed in Article 239, no power or authority vested in the Parliament to change the status of, or determine the manner in which any of the units composing FATA were to be administrated.

He contended that the impugned amendment has in effect re-designated the Tribal Areas as the province of KP and thereby, breached the fundamental right of the inhabitants of the Tribal Area to reside and settle in any part of Pakistan, as guaranteed to them by Article 15 of the Constitution.

The impugned amendment has in effect converted the majority rule and independence of the people inhabiting the federating unit know as FATA into a minority ground in KP, and thereby, breached their fundamental rights.

The autonomy guaranteed to a federating unit by the Preamble to, and Article 2A of Constitution is fatally breached where one of the autonomous federating unit, or set of such units, is unilaterally merged in another autonomous federating unit, he further argued.

This report was first published in Business Recorder on Jan 28, 2022