The Supreme Court on Tuesday was requested through a petition to determine what empowered the Frontier government to establish a new judicial forum to exercise ultimate authority - a right reserved for the apex court and protected in its appellate jurisdiction by the Constitution.
Shahid Orakzai filed the petition under Article 184 (3) of the Constitution, the inherent jurisdiction of the Supreme Court on fundamental rights, also requested the court to order the NWFP Governor to stay relevant provisions of the Nizam-e-Adl Regulation under which the capital punishment could be awarded till pendency of the petition.
On April 14, the NWFP Governor enforced the Nizam-e-Adl Regulations 2009 that also involves criminal and civil procedure in the provincially administered tribal areas of Malakand Division as well as Kohistan District. Fundamental questions of far reaching consequence have been raised by the petitioner.
He asked whether the appellate jurisdiction of the apex court could be exercised by another forum in any part of the country. The regulation, the petitioner says, brazenly trespasses the jurisdiction of the apex court, breaching the fundamental right of security of person guaranteed by the Constitution under Article 9 which says no person shall be deprived of life or liberty.
Under the regulation, the new forum called "Dar-ul-Qaza," seemingly exercising the appellate jurisdiction of this court, is to be taken as a bench of the Supreme Court under Article 183 (2) of the Constitution. The petitioner asked: "Under what authority did the Frontier Governor transplant the jurisdiction or the bench of this court?"
"The judges of the Supreme Court," the petition said, "are citizens of Pakistan and they are in their late 50s or early 60s, while the minimum age limit for the appointment as a judge of a high court in Article 193 is 40 solar-years, which was based on the Quranic standard of intellectual maturity achieved in 40 lunar-years."
"The regulation, on the contrary, does not fix any minimum age for citizens, who are empowered to give or confirm death penalty under the so-called law. "In the eyes of the Constitution, the writers of the Nizam-e-Adl Regulations are not to be taken as Muslims until they acknowledge the Quranic rule of 40 lunar years and amend the flawed regulation accordingly," the petitioner said.