Two important laws enacted amidst much publicity five years back on conflict of interest and whistleblower protection could not be implemented by the Khyber Pakhtunkhwa government so far.

The laws -- KP Whistleblowers Protection and Vigilance Commission Act, 2016 and KP Prevention of Conflict of Interest Act, 2016 – are aimed at creating transparency and good governance, but the relevant notifications required for their enforcement have not been issued so far.

Although both the laws were enacted in much diluted form as compared to their initial drafts, but still the government appears to be reluctant to implement it.

The whistleblower law was unanimously passed by the KP Assembly on Sept 19, 2016, and was published in the official Gazette on Sept 26, 2016. Similarly, the conflict of interest law was enacted in Aug 2016 and was printed in the official Gazette on Aug 12, 2016.

However, both the laws include ‘enforcement clauses’ which provides that the law shall come into force on such date as the government may, by notification in the Official Gazette, appoint and different dates may be appointed for enforcement of different provisions of the law.

A petition filed with the Peshawar High Court for enforcement of the two laws was recently disposed of by a bench without achieving the desired results as no direction was issued to the government for their implementation.

The petition was filed early this year by a lawyer, Salim Shah Hoti, requesting the court to order the provincial government to issue the required notifications for enforcement of these laws and to establish relevant commissions.

The lawyer had stated that so far these laws had not been made functional.

The respondents in the petition were: KP Government through its chief secretary, secretaries of law and establishment departments and provincial advocate general.

The petitioner stated that the conflict of interest law provided for establishing an independent commission with the mandate to determine the measure necessary to avoid conflict of interest and to determine whether a contravention of the Act had occurred and to encourage experienced and competent persons to seek and accept public office.

He stated that section 3 of the Act envisaged formation of a three-member KP prevention of conflict of interest and ethics commission.

The law, he said, was aimed at establishing clear conflict of interest and related post-employment principles for public office holders, to prevent and minimise the possibility of conflict arising between the private interest and public duties of public office holders and provided for the resolution of those conflicts in the public interest.

Moreover, the petitioner stated that the whistleblower law provided establishment of KP whistleblower protection and vigilance commission so as to enable citizens to make public interest disclosure related to irregular, illegal or corrupt practices and to prevent them from disadvantageous measures; and, to give them reward for such public interest disclosures.

He pointed out that neither rules had been framed under this law nor regulations for functioning of the commission had so far been formulated.

A two-member bench of the high court consisting of Justice Roohul Amin Khan and Justice Syed M. Attique Shah disposed of the said petition on Sept 22.

About the prayer of the petitioner for notifying rules and regulations of the two laws, the bench observed that section 23 and 24 of the KP Prevention of Conflict of Interest Act and section 16 and 17 of the KP Whistleblowers Protection and Vigilance Commission Act had empowered the provincial government and relevant department to make rules and regulations.

KP Advocate General Shumail Ahmad Butt had also turned up in the petition and had presented the notifications of 2016 about publication of the two laws in the official Gazette.

As no direction was issued to the government by the court, it is expected that the implementation of these laws would be further delayed by the government.

The law on whistleblowers defines a “whistleblower” as a person or an agency, which discloses the public interest information under this law.

The law envisages setting up of a Whistleblowers Protection and Vigilance Commission comprising three commissioners to be appointed by the government for a period of three years. The qualification provided for the commissioners includes that he or she should be a citizen of Pakistan and permanent resident of KP; is honest and a person with good character; is minimum of 45 years of age; has a bachelor’s degree and at least 15 years’ experience in the field of law, or professional of high repute from civil society or has remained a public office holder for at least 20 years; is not a defaulter of government dues; etc.

The said commission is empowered to initiate an inquiry on pointation of a whistleblower against any person, department or authority and will put forward recommendations for taking appropriate action against the concerned official if the information provided by the whistleblower proved to be correct.

The WPVC shall ensure that no whistleblower is victimized by disadvantageous measures or otherwise merely on the ground that such whistleblower had made a public interest disclosure or rendered assistance in inquiry under this law. It is provided that if a whistleblower is being subjected to disadvantageous measures he may file an application before the commission seeking redressal and the commission may pass an appropriate order giving direction to the authority concerned.

Legal experts believe that unless the required notification under the ‘enforcement clause’ of the two laws are not issued and published in officials Gazette the law could not be enforced. They say that for the sake of transparency and good governance it was vital for the government to implement these laws.

Published in Dawn, October 4th, 2021