PHC annuls KP govt’s amendment to KPEC Act

PESHAWAR: The Peshawar High Court (PHC) on Thursday struck down the impugned amendment made by the Pakistan Tehreek-e-Insaf-led government to the Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 that had empowered the judiciary to play the role of executive in appointments to the key posts at the anti-graft body including its director general.

A two-member bench comprising Justice Ikramullah Khan and Justice Qalandar Ali Khan allowed the writ petition. It had challenged the impugned amendment (legislation) to Section 6 of the Khyber Pakhtunkhwa Ehtesab Commission Act, 2014.

The amend had empowered the Administrative Committee of the PHC and the Advocate General of Khyber Pakhtunkhwa to recommend suitable persons for the appointment of Director General of the KP Ehtesab Commission, Prosecutor General and Director of Internal Monitoring and Public Complaints Wing.

The bench allowed the petition after hearing arguments from both sides. It termed the impugned legislation by the Khyber Pakhtunkhwa government against the Constitution.

PHC Bar Association President Arbab Muhammad Usman had filed the petition through his lawyer Khalid Mehmood.

During arguments, the petitioner’s lawyer submitted that the Khyber Pakhtunkhwa government, Secretary Law, Human Rights and Parliamentary Affairs and Secretary Khyber Pakhtunkhwa Assembly made the amendment to the KP Ehtesab Commission Act, 2014 without following the Rules of Business as envisaged under Rule 12, 28 and 29 of Rules of Business 1985, without consulting the Law Department and PHC.

He argued that the impugned amendment to empower the high court had been given the executive role of selection of the KP Ehtesab Commission DG, Prosecutor General and Director Internal Monitoring and Public Complaints Wing is in violation of the express provision of Article 175 of the Constitution.

The lawyer stated that under Article 175, the judiciary shall be separated progressively from the executive. He said the judiciary had been separated from the executive after a long struggle of the lawyer community.

Defending the petitioner’s stance, the lawyer submitted that now any struggle from any corner which wanted to involve the judiciary in the executive functions vice versa would be against the independence of judiciary and a violation of Article 175 of the Constitution.

Khalid Mehmood argued that the judiciary, being an independent organ of the state as enshrined in the Constitution, had a special role for granting relief to the aggrieved person, and being a watchdog of the rights of the public, demands independence of judiciary.

The PHCBA president stated said assigning the role of selection to the high court would shatter the confidence of the public in the impartiality and independence of judiciary.

It was submitted that the amendment had been made only to cover up the government’s own efficiency, incompetency, and unfairness as the selection of any official/authority was the sole job and prerogative of the executive.

Besides, it was argued that it would also difficult for the high court if an aggrieved person in the selection criteria files petition in the high court against the decision of the administrative committee, including the PHC chief justice and three senior most judges of the court.

“When an organ of the state interferes in or encroaches upon the sphere and function of other organ in such a state of matter chaos and anarchy is created. When such unconstitutional and abnormal situation [is] created, it certainly invites the adventure/third party to interfere and take over the situation through unconstitutional means,” the petitioner prayed to the bench in the petition and requested the court to strike down the impugned legislation by the government.

On the other side, both the state lawyer and Deputy Prosecutor General Zahid Aman, defended the amendment but could not satisfy the court over the query that whether the Law Department and PHC were consulted and taken into confidence while making the amendment to the KP Ehtesab Commission Act, 2014.

The PTI-led provincial government had taken the decision after facing a severe criticism that it was appointing its favourites to key posts despite being ineligible for the prized job. Due to the criticism, Khyber Pakhtunkhwa Chief Minister Pervez Khattak and PTI chief Imran Khan decided to hand over powers of appointment to the key posts, including Director General Ehtesab Commission, to the PHC. The amendment was made in the KP Ehtesab Act called KP Ehtesab Commission (Second Amendment) Act 2017.