PESHAWAR: The hearing of 15 writ petitions, challenging the enactment of Khyber Pakhtunkhwa Ehtesab Commission (KPEC) Act 2014, by a five-member larger bench of the Peshawar High Court has assumed a national significance due to important legal questions. The legal battle between several leading lawyers appearing for the petitioners and those representing the provincial government and the KPEC has still been in progress.

These cases have drawn attention of legal circles as well as of public because of the questions raised by both the sides. The edifice of the anti- corruption drive of the provincial government stands on the impugned Act, therefore, the provincial government as well as the ruling Pakistan Tehreek-i-Insaf has been giving importance to these cases.

Both the sides have advanced arguments in support of their contentions. The bench, which is headed by Chief Justice Mazhar Alam Miankhel, has now to decide these questions. Most important points so far raised by both the sides include: whether in the presence of National Accountability Ordinance (NAO) 1999 the doctrine of occupied field would be attracted and the province deemed not empowered to enact the KPEC Act; whether provisions of the KPEC Act are in conflict with the provisions of NAO and it should be struck down; whether KPEC Act is an oppressive law in which the commission’s director general has been assigned unbridled

powers; whether after the abolition of the Concurrent Legislative List of the Constitution of Pakistan and the subsequent enactment of the KPEC Act, the NAO has become redundant in Khyber Pakhtunkhwa; whether in comparison to the KPEC Act the NAO is a bad law because of the provisions of ‘plea bargain’ and ‘voluntary return’ which encourages corruption; etc.

So far marathon arguments have been advanced by lead counsels for both the sides. The petitioners’ counsels have contended that the NAO, commonly known as the NAB Law, was an all-encompassing ordinance which addressed almost all issues related to accountability due to which in its presence the provinces could not legislate on the same subject. In the presence of NAO, they believe, the field of accountability is an occupied field in which the province now could not legislate.

They also claim that after the abolition of Concurrent Legislative List the subjects mentioned therein were no longer in the legislative competence of the federal legislature, but three of the subjects, including criminal law, criminal procedure and evidence, have been left for both the federal and provincial legislatures to legislate on.

However, the provinces could not enact a law which is in conflict with the federal law on the three subjects.

These cases have taken an interesting turn after the arguments of KP Advocate General Abdul Lateef Yousafzai, who is of the opinion that the NAB Law could no longer be applied to this province following the enactment of KPEC Act. He believes that the KPEC Act is not a criminal law rather it is a special law and enactment of a special law on issues concerning the province is the exclusive domain of provincial legislature.

Because of the significance of the point raised by the AG, the bench has now also issued notices to the Attorney General for Pakistan as well as the National Accountability Bureau, asking them to assist the court on the said legal question.

Another important legal point pertains to issuance of a notification by the provincial government for setting up of the KPEC under Section 3 of the Act. While the impugned law was enacted in Jan 2014, the said notification was issued on Sept 14, 2015. The petitioners believe that in the absence of the said notification all the acts done, including the appointment of the director general, starting of inquiries and investigation and arrests made so far, are illegal.

However, the provincial government claims that as retrospective effect has been given to the said notification, therefore, the acts done earlier are not illegal.

These petitioners also include three former provincial ministers, including Senator Sitara Ayaz of Awami National Party, MPA Ziaullah Afridi and provincial information secretary of PPP Liaquat Shabab. Senator Sitara Ayaz has challenged proceedings started against her by the commission and was granted interim pre-arrest bail. Similarly, Ziaullah Afridi, who was minister in the present provincial government, has still been behind bars, whereas Liaquat Shabab was granted interim bail by the court.

Other petitioners include: a district coordination officer of Kohat, Noor Daraz Khattak, who is also father of PTI MPA Gul Sahab Khan; additional secretary finance Imtiaz Ayub; ex-director general of mines department Dr Liaquat Ali; provincial secretary industries, Sajid Khan Jadoon; owner of Iqra National University, Obaidur Rehman and others.

As this commission has drawn criticism from rival political figures and even from Ziaullah Afridi and another PTI MPA, Gul Sahab Khan, therefore, the decision of the high court is of great significance for the provincial government.

This law has been propagated as a panacea to the ill of corruption in the province and the government can’t afford losing the ongoing legal battle.

Published in Dawn, November 30th, 2015