PHC detailed judgment: Amendments to Ehtesab law violated fundamental rights of citizens

PESHAWAR: The Peshawar High Court (PHC) has struck down the Khyber Pakhtunkhwa government’s amendments to the provincial Ehtesab law which had empowered the judiciary to exercise executive power to make key appointments to the Ehtesab Commission.

The PHC declared that the impugned amendment not only militated against the trichotomy of powers envisaged in the Constitution, but also tended to violate the fundamental rights of the citizen to have access to impartial and fair justice guaranteed by the Constitution.

“The court is striking down the impugned amendment while keeping in mind consistent view of the superior courts about jurisdiction of the high courts’ in legislative matters. We nevertheless feel constrained to observe that the impugned amendment not only militates against the trichotomy of powers envisaged in the Constitution, separation of judiciary from the executive, but also tend to violate the fundamental rights of the citizen to have access to impartial and fair justice, guaranteed by the constitution, besides contravening the rules of business and other laws,” declared the division bench comprising Justice Ikramullah Khan and Justice Qalandar Ali Khan in a detailed judgment.

The court struck down the amendments made by the provincial government to the KP Ehtesab Commission Act, 2014 last year by accepting a petition of the PHC Bar Association President Arbab Mohammad Usman Khan, who insisted that the changes went against the Constitution’s provisions guaranteeing the separation of judiciary from the executive.

On April 25, 2017 the KP Assembly had passed the KP Ehtesab Commission (Second Amendment) Act, 2017, making several basic changes in the law and entrusting several important responsibilities to the administrative committee of the PHC.

Now section 6 of the law provides for constitution of a selection committee comprising judges of the high court administrative committee and the Khyber Pakhtunkhwa advocate general for making the appointments.

The amendment had empowered the administrative committee of the PHC and the Khyber Pakhtunkhwa advocate general to recommend suitable persons for appointment of the director general of the KP Ehtesab Commission, prosecutor general and director of Internal Monitoring and Public Complaints Wing.

“The scope, and work functions assigned to the “Administration Committee”, do not admit involvement of the “Administration Committee” in outside selection process of the government departments/institutions; which, on the other hand, are amenable to the constitutional/writ jurisdiction of the high court, if violation of the provisions of law and constitution,” the judgment stated.

It said that the “administration committee” is only meant for disposal of internal executive and administrative business of the high court and the courts subordinate thereto.

The court questioned that when powers of judicial review of the executive/administrative orders/decisions of the executive government, including selections/appointments, were well entrenched in the constitution, then how will it be akin to the principles of justice to also involve the “administration committee” of the high court, comprising the chief justice and senior most judges of the high court in the purely executive/administrative functions of the government to make appointments of officials/staff of the Ehtesab Commission.

In such a situation, it said the high court may unnecessarily become subject of controversy and criticism of the general public for a purely executive/administrative job/function; which has, indeed, been thrust upon it without prior consultation and also in violation of the provisions of law and constitution.

The bench stated that involvement of the judiciary in purely executive/administrative functions never contributed or enhanced its image or inspired confidence of the general public. Rather, it said, this had exposed the institution to public criticism, like the executive had to face hostility of the general public while exercising judicial powers, which was not its domain.

“This aspect of the matter, as such, becomes more sensitive in the aftermath of separation of the Judiciary from the Executive as a consequence of fulfillment of a constitutional requirement,” the court stated.

However, the court explained that one may not entertain any doubt about the intention of the government to provide a transparent and credible process of selection of the officials/staff of the Ehtesab Commission for curbing the menace of corruption in the province, but a look at the impugned amendment would bear testimony to the lack of knowledge about the constitution and functions of “administration committee” of the high court on the part of concerned quarters in the government.

The bench noted that involvement of the judiciary in the selection process appears to be a kneejerk response of the government to the onslaught of criticism which it had to face from certain quarters relating to previous appointments in the Ehtesab Commission.

“Needless to say that the decisions taken in haste in a thoughtless fashion without proper homework and adopting the path of deliberations and consultations and application of mind to the implications fallowing such a reckless decision invariably end in fiasco,” the judgment said.

Besides, it said a law enacted without the blessing and support of the main stakeholder is bound to yield no positive result either for the Government or the institution unwittingly involved in the process.

In the given situation, the high court announced that the government will be well advised to reconsider/revisit the impugned amendment in the interest of good governance and establishment of a transparent and flawless system of accountability in the province.