PESHAWAR: As a Peshawar High Court larger bench on Tuesday continued hearing around 15 petitions against the Khyber Pakhtunkhwa Ehtesab Commission Act 2014, lawyers for the petitioners insisted the National Accountability Ordinance was an all-encompassing law in whose presence, no province could legislate on corruption.

While the lawyers for petitioners were advancing arguments, the five-member bench headed by Chief Justice Mazhar Alam Miankhel adjourned hearing into the petitions until today (Wednesday).

Other four members of the bench were Justice Nisar Hussain, Justice Irshad Qaisar, Justice Syed Afsar Shah and Justice Mohammad Younas Taheem.

These petitions are filed by three former provincial ministers and government officials the KPEC Act and several steps taken there under including the establishment of ehtesab courts and appointment of the director general.

Lawyers continue to argue against Ehtesab Commission Act before high court

Barrister Mudassir Ameer and Shumail Ahmad Butt, lawyers for two of the petitioners, said while through the Constitution (Eighteenth amendment) Act the Concurrent Legislative List was abolished but few items were left over which both the Parliament and a provincial assembly could legislate including criminal law, criminal procedure and evidence. However, they pointed out that under Article 142 of the Constitution if an act of the Parliament and that of a provincial assembly were in conflict with each other then the former would prevail.

Shumail Butt extensively quoted from the judgment of the Supreme Court of Pakistan in the Asfandyar Wali Khan case related to the National Accountability Ordinance (NA), 1999, in support of his contentions and contended that anti-corruption was an occupied field in legislation as the federal government had already enacted the NAO and in its presence, the KPEC Act 2014 could not be enacted.

Butt also pointed out that the Supreme Court in its judgment had made it binding on the government to consult the Chief Justice of Pakistan in the appointment of the National Accountability Bureau chairman and its prosecutor general, but while enacting the KPEC At no such provision had been added to it for consulting the high court’s Chief Justice in the appointment of the KPEC’s director general and its prosecutor general.

“The KPEC Act has been given retrospective effect, which was against the Constitution provision related to right against retrospective punishment,” Butt said, adding that certain categories of persons were earlier exempted under the NAO, but have now been included in the provincial law.

He argued that judges and officials of security forces were not included in the NAO, but had now been included in the KPEC Act.

Further elaborating his point he said that in the KPEC Act, a public office holder definition was same to the one given in Prevention of Corruption Act under which all government functionaries defined in Section 21 of Pakistan penal Code should be considered public office holder.

During the hearing, Justice Irshad Qaisar observed that corruption had entered the roots of the country and had plagued the society.

He observed that since creation of Pakistan such like acts had been repeated and the Supreme Court of Pakistan in Haji Nawaz Kokhar case had elaborated on the history of corruption in this country.

“In China, the government officials are hanged for corruption,” he observed.

Butt said the Act was also in conflict with article 25 of the Constitution which guaranteed equality of citizens.

He added that under the NAO the provisions of ‘plea bargain’ and ‘voluntary return’ was available, but no such provision was included in the KPEC Act.

The lawyer said in the Asfandyar Wali Khan case the apex court had validated the provision of plea bargain.

He said in the schedule of the Act, violation of any rule had been included as offence, whereas under the Civil Servants Act, any act done in good faith was not a criminal offence.

Barrister Mudassir Ameer argued that there were two statutory laws for same offence, one made by Parliament and other by the provincial assembly.

He added that when the NAO was all-encompassing law covering every aspect of corruption, the passage of the impugned Act was needless.

The lawyer said several provisions of the NAO were copied in the impugned Act with little variation.

Published in Dawn, November 25th, 2015