PESHAWAR: In a bizarre case of putting the cart before the horse, the provincial government has issued a notification of the establishment of the Khyber Pakhtunkhwa Ehtesab Commission Act almost a year after the commission began functioning and thus, putting a question mark over the legality of the actions taken by the commission during the period.

The notification was issued by the provincial establishment department in the name of the Khyber Pakhtunkhwa chief secretary on Sept 14.

The notification states: “In exercise of the powers conferred by Section 3 of the Khyber Pakhtunkhwa Ehtesab Commission act, 2014, (Khyber Pakhtunkhwa Act No 1 of 2014) the Government of Khyber Pakhtunkhwa is pleased to establish the Khyber Pakhtunkhwa Ehtesab Commission.

“This notification, in pursuance of sub-section (3) of section 1 of the aforesaid Act, shall be deemed to have taken effect from the date of commencement of the Act ibid.”

Question mark hangs over commission’s actions taken in the meantime

The government has tried to give retrospective effect to the notification, which experts say is beyond its powers.

The Khyber Pakhtunkhwa Ehtesab Commission (KPEC) Act, 2014, was passed by the provincial assembly on Jan 7, 2014, and the governor assented to it on Jan 10, 2014.

Under Section 3 of the said Act, it is binding on the provincial government to establish the commission, as soon as, after the enactment of the Act, while under Section 1 (3), the Act shall come into force at once.

Interestingly, the notification required for the setting up of the commission was not issued by the provincial government, whereas it started taking measures under the Act.

Initially, five Ehtesab commissioners including the chief ehtesab commission were appointed in Aug last year through a lengthy process of selection by the search and scrutiny committee and the legislative committee of the provincial assembly.

Later on, appointments were made against the key posts including the director general, prosecutor general, etc. The director general was appointed on Oct 20, 2014.

Without the required notification, the commission became functional and from Apr 17, it also began arresting people on charges of corruption, corrupt practices and misuse of authority.

Flaws in the Act soon started surfacing when the Peshawar High Court granted interim bails to different arrested persons as there was no express provision given in the Act for the applicability of the Code of Criminal Procedure to the proceedings under the Act.

Subsequently, in 2015 several amendments were made in the Act to remove the lacunas. Through Khyber Pakhtunkhwa Ehtesab Commission (Amendment) Act, 2015, certain changes were made in the

law and a new sub-section 3 was included in section 1 of the Act. It states: “It (the Act) shall come into force at once and shall be deemed to have taken effect from the 1st day of January, 2004: Provided that all the amendments made in this Act till the commencement of the Khyber Pakhtunkhwa Ehtesab Commission (Amendment) Act, 2015, shall be deemed to have come in to force from the 1st day of January, 2004.”

Interestingly, the legal experts appearing for suspects arrested under this law were flabbergasted when they learned about the notification.

“We had presumed that the government had issued the notification soon after the enactment of the law as it was vital but now we’ve come to know that they recently issued the notification, which shows their seriousness of the tackling of such cases,” said a lawyer appearing in one of the cases.

Published in Dawn, September 22nd, 2015

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