Experimentation by the Khyber Pakhtunkhwa government with the much-trumpeted provincial accountability law continued as recently more changes were made in it. The haphazard manner in which these amendments and several previous amendments were made in the KP Ehtesab Commission Act, 2014 clearly exposed the lack of clarity on part of the policymakers regarding what type of accountability law they want in place in this province.

The KP Assembly on April 25 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, which has given birth to several legal questions. Through these amendments not only the number of Ehtesab commissioners was reduced, but also their powers. The number of commissioners has been reduced from five to two, which will be applicable after tenure of the present commissioners.

Legal experts have been questioning the justification for giving prime responsibilities to the administrative committee of the high court comprising four senior judges, including the chief justice.

“This is not appropriate as under Article 175 (3) of the Constitution of Pakistan judiciary has to be separated from the executive which means that judiciary shall not be assigned executive functions,” said Qazi Jawad Ahsanullah, an advocate of the Supreme Court.

He said that assigning executive functions to the judges of the high court was against the spirit of the Constitution. He added that how people could challenge acts of the Ehtesab commission before the high court when functions like selection of key officials of the commission and overseeing their performance was assigned to judges of the high court.

Through these amendments, the government has done away with two important bodies – the Search and Scrutiny Committee and Legislative Committee on Governance and Accountability.

Under the initial law the search committee had to nominate to the legislative committee qualified persons after prescribed procedure for the posts of Ehtesab commissioners as well as that of the director general. The legislative committee had to confirm the name for a particular post within 15 days of receiving the nomination unless it rejects a nominee by three-fourth majority vote.

Now, through the present amendments the government had 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 a suitable name for the post of Ehtesab commissioner to the government.

Apart from commissioners, the committee will 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. The procedure of selection shall be completed within 120 days following which suitable name shall be recommended to the Ehtesab commission comprising the two commissioners.

Moreover, the selection committee has also been given several other functions which are hitherto performed by the Ehtesab commissioners or director internal monitoring. It has been empowered to inquire into allegations of abuse of authority or misconduct by the commissioners, director general, prosecutor general and director internal monitoring and after giving an opportunity to be heard in person, if found guilty, may recommend to the government or the commission, as the case may be, for removal and such recommendation shall have binding effect.

The committee shall also oversee the overall performance of director general, its officers and employees without interfering in operational matter; and, inquire into allegations of corruption and corrupt practices within the directorate general or any other officer or employee of the directorate and recommend to the competent authority for necessary action in accordance with rules and regulations.

“The Supreme Court in different judgments has opposed assigning of executive functions to the judiciary and defending these amendments would be a difficult task if challenged before the high court,” said Qazi Jawad.

When the KPEC Act, 2014 was passed the government intended that there should be a single anti-corruption body in the province and the anti-corruption establishment (ACE) would cease to exist once the Ehtesab commission would start functioning. However, in June 2014 the KPEC (Amendment) Act, 2014 was passed through which t Section 57 was deleted from the original Act, thus, allowing the ACE to continue functioning in the presence of KPEC.

The government continued to introduce amendments in the law from but instead of improving the law it created further inconsistencies. Through some amendments passed by the assembly on Jan 24, 2017 the powers of the commission were diluted. Through the KPEC (Amendment) Act, 2017 it was provided that a suspect of corruption and corrupt practices should not be arrested without permission of the Ehtesab court.

In August last year the assembly had passed the KP Ehtesab Commission (Amendment) Act, 2016 through which certain powers of the commission were curtailed. On pretext of smooth running of the development schemes the government had barred the director general from taking action in matters involving procedural lapses in ongoing projects.

Later, the provincial government further amended the relevant provisions and the law now provides that the director general shall not take action in matters involving pure procedural lapses and in ongoing schemes of government from current budget or developmental budget as the case may be.

Apart from problems with the law, the directorate general of the commission has been functioning under an acting director general for over a year now. The post of director monitoring also fell vacant recently after which another controversy emerged when services of a NAB official were requested for the said post of director.

Experts believe that instead of tinkering with the law the government should first decide with sincerity what type of accountability law it wants in the province. Moreover, they say that instead of running two parallel accountability bodies of KPEC and ACE, the government should stick to one and strengthen it.

Published in Dawn, May 1st, 2017