Court ruling: Petitions challenging authority of EC act dismissed

Legislation was passed in haste, say lawyers who petitioned against it

PESHAWAR:

The Peshawar High Court dismissed all constitutional petitions challenging the authority of the Khyber-Pakhtunkhwa Ehtesab Commission Act 2015 and declared that the law is legal and fulfils constitutional requirements.

A larger bench that heard the petitions on Wednesday also ruled to decide new bail applications of suspects arrested under Ehtesab law on merit. Bail applications granted earlier would remain intact. It was also observed that trial courts of the Ehtesab Commission (EC) could also decide the cases.

The bench also declared appointment of a director general for the EC lawful and dismissed all quo warranto petitions (quo warranto is a special form of legal action used to resolve a dispute over whether a specific person has the legal right to hold public office that he occupies). The petitions were filed by Ziaullah Afridi, Noor Daraz Khattak, Liaquat Shabab, Dr Liaquat Ali, Ghulam Muhammad, Afsar Khan, Ubaidur Rahman, Sajid Jadoon and others.

A panel of lawyers representing the petitioners argued that the provincial government passed a law and set up the EC to root out corruption from the province.

They argued that members of the commission wanted to appoint the DG. However, the government appointed its official on the post in violation of rules and regulation.

The lawyers added the provincial government also issued a notification a year after the EC was set up, which was illegal.

They added that the commission also started arresting people a year before the notification was issued. As a result, all actions taken before the notification had no constitutional and legal status.

The commission was allowed to investigate corruption cases from 2004, which was against the spirit of the Constitution.

The counsels argued that the law was formulated under the charter of good governance which has no legal status. They argued that government was bound to appoint a NAB chairman in consultation with the leader of the opposition and the Supreme Court, and this power has not been granted to the high court.

They argued that the commission was set up through a notification, but it was not printed in the official gazette. As a result, it would not be considered lawful till September 14, 2015, the day when the notification was issued.

They contended that EC act was a “verbatim copy” of the National Accountability Ordinance (NAO) that includes sections from civil and criminal laws.

According to the counsels, Section 50 of the 2015 act states rules would be formulated for the establishment of the EC, which is yet to be made. They argued that the EC was set up to further political interests. They also cited the judgment in Asfandyar Wali’s case, saying the law was against Article 10 of the Constitution and therefore he does not have the right to a fair trial.

The panel also said the act was passed in haste for which all legal and constitutional requirements were not fulfilled.

However, the respondents’ lawyers, including Advocate General Abdul Latif Yousafzai and his team argued that the concurrent list was abolished after the passage of 18th constitutional amendment.

“The amendment empowers the province to make legislation for their provinces in criminal law, criminal procedure and evidence,” he told the bench while responding to petitioners’ counsels’ points.

Yousafzai said after passage of the EC Act, the NAO was no longer applicable to the province as the Constitution allows the province to make special laws for themselves.

He argued under the 2015 legislation there was no need to issue notification. “However, if issued, it would be an official error that doesn’t affect actions taken under the law.”

Additional Advocate General Umer Farooq Adam had defended Yousafzai’s arguments and said an anti-corruption law existed before the NAB legislation. He was of the view that corruption increased in presence of NAB, while there
was no internal audit or accountability systems.

Published in The Express Tribune, December 24^th, 2015.