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Monthly Archive February 2016

Concerns on KP ‘Ehtesab’

Everything was going well until reports started coming in about the arrest of the father of the KP ruling party’s MPA Gul Sahib Khan in April 2015 in a land-grabbing case, and the subsequent arrests of ex-minister Liaqat Shabab and sitting minister for mines and minerals Ziaullah Afridi.

These arrests sent shockwaves through the political elite giving an idea of the powers resting with the Ehtesab Commission, its DG in particular. In the next couple of months 14 petitions lined up before the division bench of the Peshawar High Court (PHC), challenging various provisions of the EC Act 2014.

A larger bench of the PHC attended all 14 petitions in six sittings to confirm three constitutional concerns about the KP EC Act 2014. The first was whether the KP EC Act 2014 is in conflict with Articles 142 and 143 of the constitution while the NAB ordinance is in force. The second was whether the KP EC Act 2014 is in contravention of fundamental rights as protected in Articles 10A, 12 and 25 of the constitution. And the third was whether the provisions of the KP EC Act 2014 pass the reasonability test. On December 23, 2015, the PHC finally confirmed the above three questions in the negative – thereby protecting the Ehtisab Commission.

The KP Ehtesab Commission has witnessed three amendments to date. The first amendment was passed by the KP assembly reversing the absorption of the Anti-Corruption Establishment (ACE) into the Ehtesab Commission. The second amendment further empowered the commission and made the offenses under the commission non-bailable. The third and the most recent amendment has triggered a debate about the independence and authority of the commission when it comes to its intended function, prevention of corrupt practices and holding all public officers accountable.

The recent amendments seem to have inflicted quite some damage to the perception of the KP government’s intentions about an anti-corruption drive across the province. The resignation of the commission’s DG, after notifying the CM of his reservations on the proposed amendments, further strengthened the perception of mala fide intentions behind these amendments. It is important to see the nature of the amendments when it comes to the structure and functions of the commission. These amendments can broadly be categorized as: 1) redistribution of powers within the commission; 2) taking away powers from the commission, and 3) introducing political and executive influence.

With a few amendments, a directorate general has been created within the commission. The directorate will be headed by the DG. A further role of the commission and the directorate has also been defined with more clarity. Filing a reference and arresting an accused are two key stages for investigation. The respect and professionalism of an accused public office-holder are at the stake, and this process deserves a detailed assessment before making any decision.

Prior to the amendments, the DG of the commission was the sole authority that decided about filing a reference before the court and arresting an accused. However, the amendment in Section 37 recommended a time-bound decision on filing a reference by the majority of votes amongst the chief ehtesab commissioner, two commissioners, the DG and the prosecutor general. With regard to the arrests of the accused, now clause (ab) has been added under section 9 to empower the commission for granting approval of the DG for the arrest of any accused. Approval of the commission for the issuance of an arrest warrant has also been inserted in 36(5).

There are certain amendments that take away the few powers the commission has. The most important of these is the power Suo moto action against any corrupt practice. It also takes away the powers of the commission to set the salary, allowances and terms and conditions of its employees – including the DG and directors of all six wings of the directorate. After the amendment, all these powers now stand with the government, which can challenge the commission in recruiting a competent team to adequately meet its core business.

On the other hand, a legislative committee comprising five members each from the treasury and opposition benches has been given the authority to inquire into any allegation of abuse of authority or misconduct by the commissioners. However, the committee has to recommend a divisional bench of the PHC to remove the commissioner from office if found guilty.

Through some other amendments, the time limit for inquiry and investigation has been increased from the existing total 90 days to 120 days – where 90 days are for inquiry and 30 days for investigation. The conversion of an inquiry into the investigation is subject to the approval of the commission. Police powers are restricted to 30 days of investigation of the case. The custody of an accused has been reduced from 45 to 15 days. The chief secretary and speaker are required to be informed when a civil servant or MP are being arrested.

The first director general of the commission has resigned, citing four reasons for leaving. One of his concerns was about the interpretation of the act with regard to the role of the DG and commissioners. This concern has been adequately addressed and clarified through recent amendments. However, the former DG does not seem comfortable and convinced of the position of the DG after these amendments. Commissioners have also written to the governor in this regard.

The former DG’s other concerns include reversal on the absorption of the ACE and overlapping jurisdiction with NAB. A detailed mechanism is provided in the EC Act to settle the matter with federal agencies but this may not be very productive and effective. The DG’s dissatisfaction with the amendments is more descriptive than specifics.

Before the amendment is introduced in the provincial assembly, the KP government should deliberate further on this in the public domain and seek expert views on any provision that may adversely affect the government’s anti-corruption efforts.
The resignation of the director general has already caused a dent, and other directors may follow the suit if the new terms and conditions for their employment differ largely from what they were engaged in originally.

This was originally published in The News on Feb 14, 2016,