PESHAWAR: The lawyers for petitioners, who have challenged the Khyber Pakhtunkhwa Ehtesab Commission Act 2014, told a larger bench of Peshawar High Court on Wednesday that the notification for the establishment of the commission was issued after a delay of 20 months and had yet not been published in the official gazette thus putting a question mark on all its acts.

While concluding their arguments the counsels also pointed out that despite passage of over 22 months the provincial government had so far not notified rules under the impugned Act for carrying out the affairs of the commission.

Khyber Pakhtunkhwa Advocate General Abdul Lateef Yousafzai in his initial arguments contended that following the passage of the Constitution (Eighteenth Amendment) Act, 2010, the Concurrent Legislative List stood abolished and the provinces could legislate on all subjects not included in the Federal Legislative List of the Constitution. He added that the provinces could enact laws on issues related to criminal law to the extent of the said province.

The five-member bench headed by Chief Justice Mazhar Alam Miankhel rose for the day and will resume hearing on Thursday in around 15 writ petitions filed against the KPEC Act and different related issues including establishment of Ehtesab courts, appointment of director general and other officials, issuance of notification for the setting up of the commission, etc.

The petitions are filed by three former provincial ministers and several government officials against whom the commission had started proceedings on charges of misuse of authority and corruption.

The AG said he would assist the court on all the points raised by the petitioners’ counsels in his capacity as advocate general, whereas an additional advocate general Umer Farooq Adam would advance arguments on behalf of the provincial government. The KPEC and National Accountability Bureau would be represented by their prosecutors.

Petitioners’ counsels Qazi Jawad Ahsanullah, Ghulam Mohiuddin Malik, Moazzam Butt, Ayaz Khan and Barrister Mudassir Ameer advanced arguments in support of their contention that the enactment of KPEC Act 2014 and subsequent steps taken there under were unconstitutional and excessive legislation. The main thrust of arguments revolved around the impugned notification issued on Sep 14, 2015, which was 20 months after the enactment of the KPEC Act 2014, and the retrospective effect given to it.

Qazi Jawad contended that the impugned notification was issued in Sep 2014 and had still not been published in the official gazette. “As the impugned notification is not a gazette notification, therefore it has no legal standing and thus the functions performed by the commission so far are illegal and unconstitutional,” he added.

Advocate Ghulam Mohiuddin Malik said the KPEC Act was enacted on Jan 13, 2014, and under Section 3 of the said Act the provincial government had to issue at the earliest a notification for the setting up of the commission. However, he added that in the absence of that mandatory notification commissioners were appointed to the commission and subsequently the director general was appointed and on his orders different inquiries were conducted and petitioners were arrested, which was illegal.

Advocate Moazam Butt argued that under section 50 of the impugned Act rules had to be framed for carrying out functions of the commission but the said rules had so far not been notified.

Published in Dawn, November 26th, 2015