PESHAWAR: A Peshawar High Court bench on Thursday declared unconstitutional certain amendments to the provincial Ehtesab law through which the judges of the high court’s administrative committee were given important tasks in the Khyber Pakhtunkhwa Ehtesab Commission, especially that of making key appointments.

Justice Ikramullah Khan and Justice Qalandar Ali Khan struck down those amendments made by the provincial government to the KP Ehtesab Commission Act, 2014, last year, by accepting a petition of PHC Bar Association president Arbab Mohammad Usman Khan, who insisted that the changes went against the Constitution’s provisions guaranteeing the separation of judiciary from the executive.

The bench pronounced a short order of the petition’s acceptance after petitioner’s lawyer Khalid Mehmood and additional advocate general Mujahid Khan finished arguments.

Rules giving KPEC tasks to judges against the law

On Apr 25, 2017, the KP Assembly had passed the KP Ehtesab Commission (Second Amendment) Act, 2017, making several basic changes in the law and entrusting several important responsibilities to the administrative committee of the Peshawar High Court. Now section 6 of the law provides for constitution of a selection committee comprising judges of the high court administrative committee and the KP advocate general.

Advocate Khalid Mehmood said the amendments were inappropriate as under Article 175 (3) of the Constitution, the judiciary had to be separated from the executive, which means that judiciary shall not be assigned executive functions.

He contended that assigning executive functions to the judges of the high court was against the spirit of the Constitution.

The lawyer wondered how the people could challenge acts of the Ehtesab commission before the high court when functions like selection of key officials of Ehtesab commission and overseeing their performance was assigned to judges of the high court.

He contended that through the amendment Act the government had done away with two important bodies namely: Search and Scrutiny Committee and Legislative Committee on Governance and Accountability.

“Now, through the present amendments, the government has deleted the provisions related to the said two committees and the responsibilities have now been assigned to a selection committee comprising judges of the administrative committee of the high court and the KP advocate general. The selection committee has now been assigned the task to recommend suitable name for the post of the Ehtesab commissioner to the government,” he said.

The lawyer said apart from commissioners, the selection committee would also select suitable persons for the posts of director general, prosecutor general and director Internal Monitoring and Public Complaints Wing by inviting applications from general public.

He said the Supreme Court in different judgments had opposed the assigning of executive functions to the judiciary. The lawyer said the judiciary being separate organ of the state it could not interfere or encroach on the sphere and function of the executive, especially for the selection of most important officials under the Ehtesab law.

He said previously, it was the responsibility of the executive to make all those appointments, but as they had failed, therefore through mala fide intentions they had included judges of the high court in the selection process so as to shift the burden of failure to the judiciary.

The additional advocate general said judges had already been performing different executive functions and there was no harm if they had been assigned the responsibility of selection officials of the Ehtesab commission.

He said the high court had already been appointing judges to the district judiciary, whereas judges were also members of syndicate in different universities.

Published in Dawn, March 2nd, 2018