For most part of the year 2015 the Khyber Pakhtunkhwa government remained engaged in hectic litigation related to different important laws challenged before the Peshawar High Court. The high court decided different cases in its favour and validated certain legislations, including the KP Local Government Act, 2013; KP Ehtesab Commission Act, 2014; and the KP Medical Teaching Institutions (MTI) Reforms Act, 2015.
The year ended on a positive note for the government as on Dec 23 a larger bench of the PHC declared the enactment of two laws – KPEC Act 2014 and MTI Act 2015 – which are dearer to the ruling Pakistan Tehreek-i-Insaf (PTI), as valid laws and in accordance with the Constitution of Pakistan. These laws are of immense importance for the provincial government as the entire structures of health reforms and accountability in the province rest on them.
The high court had constituted a five-member larger bench for hearing the cases filed against these two laws. The bench was headed by Chief Justice Mazhar Alam Miankhel and its other members were Justice Nisar Hussain, Justice Mrs Irshad Qaiser, Justice Syed Afasar Shah and Justice Mohammad Younas Taheem.
While dismissing 15 writ petitions against the provincial Ehtesab law, the high court ruled that it was a reasonable piece of legislation. Prominent among the petitioners were: a former provincial minister and MPA Ziaullah Afridi; ex-provincial minister, Senator Sitara Ayaz; ex-provincial minister and leader of PPP Liaqat Shabab; a district coordination officer of Kohat, Noor Daraz, who is father of PTI MPA Gul Sahab Khan; provincial secretary of industries, Sajid Jadoon; and others.
Some of these petitioners had also challenged a notification issued by the provincial government on Sept 14, 2015 for setting up of the commission, arguing that all the acts done by the commission before that notification may be declared as illegal including the appointment of the Ehtesab Commission’s director general. The petitioners had also argued that in the presence of National Accountability Ordinance (NAO) 1999 the provincial government had no powers to enact another law for setting up a new body for the same purpose of conducting accountability.
Similarly, the bench declared the MTI Reforms Act 2015 a legal enactment, but issued certain directives to the provincial government for improving the law. In its short order, the bench directed the government to make suitable amendment in the impugned Act for creation of post of director of paramedical staff in each of the MTIs. Presently, under the Act there are two posts of directors of MTI, including a medical director and hospital director.
The court had asked the government that the law should also be suitably amended and corresponding rules framed to break the cartel of doctors and pharmaceutical companies. The seven petitioners in those cases had challenged different provisions of the MTI Reforms Act and different steps taken under it, including the creation of surplus pool of employees and establishment of board of governors (BoG) for the teaching institutions in the province.
The bench directed respondents, including the provincial government, that it should make suitable amendments in the legislation in the light of observation made in the detailed judgment and frame corresponding rules to maintain strict discipline in the institutions, mainly focusing on provision of timely and effective services to public. The detailed judgment has yet to be released by the court.
Prominent among the petitioners were: Pakistan Medical Association, Khyber Pakhtunkhwa chapter, through its president Dr Hussain Ahmad Haroon; Pakistan Paramedics Association; Teachers Association of Khyber Medical College; former medical superintendent of Ayub Teaching Hospital, Abbottabad, Dr Iftikhar; and some nursing and paramedical staff.
The petitioners had challenged the MTI Act on different grounds, stating that the law was unconstitutional and aimed at bringing autonomous medical teaching institutions (MTIs) under the control of provincial government through the board of governors.
Earlier, on May 12 a two-member bench headed by Chief Justice Mazhar Alam Miankhel had dismissed two writ petitions challenging several provisions of the Khyber Pakhtunkhwa Local Government Act 2013. Those petitions were filed by provincial parliamentary leader of Awami National Party Sardar Hussain Babak and provincial information secretary of JUI-F Abdul Jalil Jan.
The petitioners had challenged the provisions related to holding of village/ neighbourhood councils’ elections on non-party basis; election of nazim and naib-nazim of village/neighbourhood council; powers of chief minister to suspend a district nazim and the decisions of district nazim; etc.
The petitioners had stated that it was beyond logic that polls for the district and tehsil councils would be held on party basis whereas that of the village and neighbourhood councils would be held on non-party basis. They claimed that under Chapter 12 of the LGA unbridled powers were assigned to the chief minister which would leave negative impact on the independence of local councils.
In another case, a high court bench headed by Justice Waqar Ahmad Seth on April 29 declared the functioning of executive magistrates in the Provincially Administered Tribal Areas under the Nizam-i-Adl Regulation 2009 as unconstitutional and directed the government to make suitable amendments in the Regulation within six months. The bench had issued the directives while disposing of six writ petitions challenging the functioning of executive magistrates in Pata comprising Malakand division along with some other provisions of the Nizam-i-Adl Regulation (NAR) 2009.
The executive magistracy, which was abolished in the country in 2001 by the then military government of Pervez Musharraf, was revived in Malakand division under Section 5 and Section 7 (4) of NAR, which provided judicial powers to executive officers who were not under the administrative control of the high court.
Those petitions were filed by former district nazim Yousaf Ayub, Barrister Adnan Khan of Swat and four others. The provincial government has filed an appeal against the said judgment, which has now been pending before the Supreme Court.
Published in Dawn, January 4th, 2016
