PESHAWAR: Khyber Pakhtunkhwa advocate general Abdul Lateef Yousafzai on Thursday insisted after the passage of the provincial Ehtesab Commission law, the National Accountability Ordinance 1999 (NAB law) was no more applicable to the province.

He also justified the introduction of the provincial Ehtesab Commission law claiming the Constitution allowed the provinces to make special anti-corruption laws for themselves.

“Following the passage of the Constitution (Eighteenth Amendment) Act 2010, the enactment of special laws for matters concerning the provinces, which was earlier mentioned in the Concurrent Legislative List of the Constitution, has been the exclusive domain of the provinces,” the provincial AG told a Peshawar High Court larger bench hearing cases against the Khyber Pakhtunkhwa Ehtesab (KPEC) Act 2014 and the subsequent steps taken under it.

The five-member bench headed by Chief Justice Mazhar Alam Miankhel later adjourned cases after hearing for fourth consecutive day.

Around 15 petitions filed by three former provincial ministers and several officials have challenged the KPEC Act and the subsequent steps taken under it, including the appointment of its director general, establishment of Ehtesab courts, and issuance of notification for creating the commission.

The AG gave lengthy arguments and raised several points, including the one about the functioning of the National Accountability Bureau (NAB) in the province.

He said before the Constitution (Eighteenth Amendment) Act, both the federal and provincial legislature were empowered to legislate on issues mentioned in the Concurrent Legislative List.

He said though the Concurrent Legislative List ceased to exist after the said amendment was made, both the federal and provincial legislature could legislate on matters related to criminal law, criminal procedure and evidence only.

“The KPEC Act cannot be placed in the category of criminal law rather it was a special law. Previously, the enactment of special law concerning the federal and provincial governments was placed as Entry No 16 in the Concurrent List, but after the abolishing of the said List such like enactment is now in the provincial domain,” he said.

Mr Yousafzai referred to Article 270-AA of the Constitution amended through the said Amendment saying the laws introduced during emergency from Oct 1999 to Dec 2003 on matters mentioned in the abolished Concurrent List should continue to remain in force till altered or repealed by the competent forum.

He said in the present case, he added the provincial legislature was the competent forum and it had enacted the KPEC Act following which the federal law on the subject, NAO, should no longer be applied to this province.

When the chief justice inquired about the fate of numerous inquiries and investigations pending with the NAB in the province, the AG said those inquires could be transferred to the Ehtesab Commission.

The bench asked how it could declare the applicability of the NAB law in KP as unconstitutional when that was not challenged before the court.

Mr Yousafzai said the government had been making the required amendments to the KPEC Act to remove flaws.

About the stand of petitioners regarding the delay in issuance of notification for the setting up of the Ehtesab Commission, he said under Section 3 of the Act, even the issuance of the said notification was not required.

He said when the notification was issued, the government had mentioned that it would be applicable with retrospective effect.

Additional advocate general Umar Farooq Adam advanced his initial arguments when the bench rose for the day.

He rebutted the petitioners’ contention that in the presence of NAB law, anti-corruption was an occupied field and the provinces had no authority to enact a law in that regard, saying the field was not occupied as NAB had miserably failed in rooting out corruption from the society.

The additional advocate general said the failure of the NAB had forced the provincial government to introduce the KPEC law.

Published in Dawn, November 27th, 2015