PHC strikes down amendment to Ehtesab Commission law

In detailed judgment, court distances itself from taking up key role in accountability body

PESHAWAR: In a blow to the provincial government, a high court on Tuesday termed amendments made to the Ehtesab Commission law as ‘illegal’ and ‘unconstitutional’ as it sought to distance itself from the affairs of the body.

The amendments had empowered the Peshawar High Court (PHC) to appoint the director general and other officials of the Khyber-Pakhtunkhwa Ehtesab Commission (K-PEC).

In its detailed judgment, issued on Tuesday, the court ruled that the amendment was wrong, illegal and inconsistent with provisions of the Constitution. It further added that it was against the independence of the judiciary and the principle of trichotomy of powers.



“The Khyber-Pakhtunkhwa government is advised to reconsider the impugned amendment in the interest of good governance and establishment of a transparent and flawless system of accountability in the province,” read the judgment authored by justice Ikramullah Khan and Justice Qalandar Ali Khan of the Peshawar High Court (PHC).

Involving judiciary in the selection process, said the judgment, appears to be in response to criticism the K-P government had faced relating to previous appointments in the K-PEC.

The high court went on to term the amendment as a decision taken in ‘haste’ and ‘thoughtless’ fashion without proper deliberations and consultations.

The judgment was issued after a writ petition had been filed by Arbab Usman, the president of the Peshawar High Court Bar Association (PHBA).

Usman had challenged the amendments introduced by the K-P government in 2014 to Section 6 of K-PEC act which called for making a selection committee consisting of judges of the administrative committee of the PHC while the advocate general would recommend suitable people for the post of K-PEC director general, prosecutor general, internal monitoring and public complaints wing directors of K-PEC by inviting applications from the  public through an advertisement.

The amendment added that such recommendations would be binding on the government.

This selection committee would also have the authority to inquire into allegations of abuse of authority or misconduct by the commissioners, director general, prosecutor general and other officials of the commission.

It would also have the power to recommend the removal of any such officer found guilty, with the recommendations having a binding effect.

The petitioner had argued in the case that the judiciary has been separated from the executive after a long struggle by the lawyer community, therefore, any attempt to involve the judiciary in the executive’s functions and vice-versa would be against the independence of the judiciary and in violation of Article 175 of the Constitution.

The petitioner had claimed that the amendment had been tabled without publishing it for the scrutiny of the general public or before consulting with the law department.

“The amendment tends to malign the judiciary and shatter the confidence of the public in the impartiality and independence of the judiciary,” Usman had claimed. “It is against the fundamental rights of people of the province.”

The petitioner has alleged that the sole aim of the amendment was to cover up the inefficiency, and lack of transparency and fairness on the part of the government, apart from shifting the burden of selection to the High Court in utter violation of provisions of the Constitution.

“It needs to be stressed that involvement of the Judiciary in purely executive functions never contributed or enhance its image or inspire the confidence of the general public,” said the verdict. “If allowed, it may expose the institution of the judiciary to public criticism.” 

Published in The Express Tribune, March 14^th, 2018.