PHC extends stay against functioning of two Ehtesab courts

PESHAWAR: The Peshawar High Court on Tuesday extended the stay restraining the two Ehtesab courts from functioning but it allowed the Khyber Pakhtunkhwa Ehtesab Commission to continue with its investigation into cases of corruption and misuse of power.
During the course of court proceedings, a judge of the Peshawar High Court bench hearing the cases observed that there has been an increase in corrupt practices. “Unfortunately, the corruption has spread in the country to the extent that it has affected its very roots. Corruption started from the inception of the country. Death sentences are being awarded to the corrupt people in China,” Justice Irshad Qaiser remarked during the hearing of a dozen writ petitions challenging the Khyber Pakhtunkhwa Ehtesab Commission (KPEC) Act 2014, including appointment of the commission’s director general.
The judge reminded that the Supreme Court of Pakistan in the case of Nawaz Khokhar had elaborated the history of corruption. She observed that the KPEC Act is different from the National Accountability Ordinance (NAO) as it didn’t have any provision of relief of plea bargain and voluntary return for the accused persons.
The PHC larger bench comprising of Chief Justice Mazhar Alam Miankhel, Justice Nisar Hussain, Justice Irshad Qaiser, Justice Syed Afsar Shah and Justice Muhammad Younas Thahim extended the stay order till today about restraining the two Ehtesab courts established by the provincial government. The courts were asked not to proceed further in the pending cases.However, the bench directed the KPEC to continue with inquiries and investigations into cases of corruption and misuse of power.
The larger bench continued hearing arguments on the second consecutive day in the writ petitions filed by three former provincial ministers and some government officials.
They had challenged different provisions of the KPEC Act 2014 and related issues. These pertained to appointments of the commission’s director general and the petitioners’ arrests by the KPEC on different charges.
Continuing his arguments, the petitioners lawyer Shumail Ahmad Butt submitted that the provincial government claimed it had made the KPEC Act under ‘Charter of Good Governance.’ “There is neither any legal status of ‘Charter of Good Governance’ nor the provincial government had explained it,” he argued.
He cited the example of Canada which made laws under the Charter of Good Governance before adopting the Charter of Good Governance Act. He pointed out that the provincial government had not followed the proper course before enacting the KPEC Act.
He argued that only the federal government had the jurisdiction to form Ehtesab courts. He said the Supreme Court had declared that if the federal government established special courts in the province then the provincial government could not establish such courts.
The counsel told the bench that there was no legal status of the KPEC Act. He said the provincial government had extended the jurisdiction of the Pakistan Penal Code (PPC) to the KPEC Act which was contrary to the Constitution.
Barrister Mudassir Ameer, who is also representing the petitioners, submitted that there were no new offences in the KPEC Act as all the offences had already been covered by the NAO.He stated that the KPEC Act was in conflict with the NAO. He explained that the suspects were deprived of fundamental right of plea bargain and voluntary return as given in the NAO.
He said that the KPEC Act is a duplication of the NAO and all the powers conferred on the NAB chairman had also been given to KPEC director general.Barrister Mudassir Ameer cited various judgments of the superior courts in which it was declared that if one law is in conflict with another it should be declared void.
He argued that under Article 137 of the Constitution in any matter with respect to which both Parliament and provincial assembly of a province had powers to make laws, the executive authority of the province shall be subject to the executive authority expressly conferred by the Constitution or by law made by Parliament upon the federal government.
The counsel contended that enacting a law on the same subject matter amounted to double jeopardy, which was prohibited by the Constitution.
He added that when the federal government had set up accountability courts for dealing with accountability cases, then the provincial government had no authority to establish Ehtesab courts for dealing with the same nature of cases.
He said several provisions of the KPEC Act were copy of the provisions of the NAO and it showed that both laws were identical and thus the federal law will prevail.The bench adjourned hearing into the cases for today after completion of the arguments by the two lawyers.