Petitions against KP Ehtesab Commission

PESHAWAR: As the Peshawar High Court continued hearing petitions against the Khyber Pakhtunkhwa Ehtesab Commission Act 2014 for the third consecutive day on Wednesday, the lawyers for the petitioners argued that the provincial legislatures could not make laws on corruption in the presence of the National Accountability Ordinance.
During the hearing, the petitioners’ lawyers including Barrister Mudassir Ameer, Qazi Jawad Ihsanullah, Ghulam Mohiuddin Malik, Muazzam Butt and Ayaz Khan raised several law points before the bench headed by Chief Justice Mazhar Alam Miankhel.
Barrister Mudassir Ameer said that on January 18, 2014 the provincial government had issued gazette notification, which had also been passed by the Khyber Pakhtunkhwa Assembly earlier on January 13.
Later, he added, the provincial government issued a notification regarding formation of the Khyber Pakhtunkhwa Ehtesab Commission (KPEC) on September 14, 2015. He said the provincial government through an executive order gave retrospective effect to the law to carry out investigation of the corruption cases since 2004.
He pointed out that the provincial government had no power to bring amendments in the law through notification as the power of amendments rests with the assembly that passed the law.
Qazi Jawad Ihsanullah, another counsel for the petitioners, argued that already two laws including National Accountability Ordinance (NAO) and anti-corruption law existed and there was no need to enact the third law of KPEC Act, which is parallel to the federal law of NAO.
He submitted that the provincial government had even violated its own enacted law in respect of the appointment of the director general, commissioners and establishment of the KPEC.
He informed the bench that the provincial government through a simple notification had established the KPEC and has yet to notify it in the official gazette.
He said that according to several judgments of the superior courts, there is no legal status of an institution that is not notified in the official gazette. “Legally the KPEC does not exist and all its actions to-date are unconstitutional,” he argued.
Another senior lawyer representing the petitioners, Ghulam Mohiuddin Malik, submitted that the appointment of the commissioners was also not made under the law.
He said under the KPEC Act, full participation of the 10-members search committee is must for the appointment of the commissioners, but in this case the committee members did not participate as per the law.
He added that the Supreme Court in the famous case of Asfandyar Wali Khan had declared that there would be no ban on bail from the superior courts, but in case of the KPEC this decision is being violated.
Assisting the bench on legal points, Advocate General Khyber Pakhtunkhwa Abdul Latif Yousafzai said that first the Concurrent Legislative List had been abolished and provinces were empowered to do their own legislation. After the 18th Amendment in the Constitution, he said the provinces were empowered to legislate for themselves, including legislation on criminal laws.
The court adjourned the cases as the Advocate General Khyber Pakhtunkhwa, Additional Advocate General Umar Farooq Adam and KPEC prosecutors would continue arguments to defend the law today.