View from the courtroom: Anti-Corruption Establishment needs to be strengthened

Dawn

The Khyber Pakhtunkhwa Assembly on Dec 28 closed down the over four years long controversial chapter of Khyber Pakhtunkhwa Ehtesab Commission (KPEC). The assembly passed a government-introduced bill, Khyber Pakhtunkhwa Ehtesab Commission (Repeal) Bill, 2018, for abolishing the commission, which was set up in 2014 amid much publicity.

Through this Bill, the government has repealed the KPEC Act, 2014, and now all the complaints, inquiries and investigations pending before the commission shall stand transferred to the KP Anti- Corruption Establishment (ACE). Similarly, the references pending before the Ehtesab court should stand transferred to anti-corruption courts.

Experts believe that the previous provincial government of Pakistan Tehreek-i-Insaf had experimented with the KPEC Act 2014 and instead of strengthening the anti-corruption mechanism had made it more controversial. Now in a haphazard manner the provincial government has abolished the KPEC without strengthening ACE, which has been functioning under an over a five-decade old law, the West Pakistan Anti-Corruption Establishment Ordinance, 1961.

Initially, when the KPEC Act, 2014, was passed in Jan 2014 the ACE Ordinance, 1961, was repealed through section 57 and the KPEC had to serve as the only provincial authority to deal with corruption cases. The law provided that all the assets and staff of the ACE shall stand transferred to KPEC.

However, in June 2014 the provincial government passed an amendment from the provincial assembly and allowed ACE to continue functioning in the presence of KPEC. Under section 6 of the ACE Ordinance 1961, the KP ACE Rules, 1999, were framed which provide mechanism for dealing with corruption cases by the ACE. However, these rules need immediate changes as in its present form the process of dealing with corruption cases is time consuming.

Under the law, ACE is headed by a director of BPS-18 and for several of the acts the ACE needs approval of the provincial government. The rules provide that preliminary inquiries and investigation against public servants shall be initiated by the ACE on the complaint received from government, head of a department or other reliable sources.

The director is empowered to initiate inquiry, but an inquiry against secretaries of the government and head of attached departments should only be initiated with prior permission of the chief secretary. Furthermore, for registration of a criminal case against an accused public servant, written orders of the director are required for officers of BPS-18 and below, whereas written orders of the chief secretary are required for BPS-19 and above.

While making a request for registration of a case against an accused public servant, a simultaneous request may be made by the ACE to the authorities if the arrest of the said officer is required. In that case if an accused officer is up to BPS-16 the permission of the director is required, and if the officer is in BPS-17 and above then permission of the chief secretary is required to arrest him.

An inquiry and investigation should be completed within one month and two months, respectively. For extending the said time period the concerned investigation or inquiry officer has to again seek permission of the director if an accused officer is in BPS-18 or below and permission of the chief secretary if the officer is in BPS-19 and above.

Interestingly, after completion of investigation for the submission of final charge-sheet before the concerned court the permission of the director is required for an officer in BPS-18 and below, whereas permission of chief secretary is required if the accused officer is in BPS-19 and above. Thus the entire process of taking action against an officer accused of corruption under the ACE Rules is cumbersome and time consuming and it needs to be simplified.

Moreover, under the existing law the ACE is not an autonomous and independent body. The director of ACE is appointed through transfer from other departments specially the police department, who could be transferred anytime.

Just like the tenure of NAB chairman and that of director general of KPEC, the tenure of a director may be fixed so that he could perform his duty without any pressure. Moreover, the post needed to be upgraded just like in Punjab, where

amendment was made in the law in 2005 and the “director” was replaced with “director general.”

Similarly, on the pattern of section 25 of the National Accountability Ordinance 1999, which provides for plea-bargain and voluntary return agreements between the NAB and an accused person, changes may also be made in the ACE Ordinance 1961 for including identical provisions.

As far as the performance of KPEC was concerned, the commission had continued to function on ad-hoc basis. The five ehtesab commissioners, including the Chief Ehtesab Commissioner, had completed their four-year tenure on Aug 20. The key post of the KPEC’s director general had fallen vacant in Feb 2016 when the then incumbent retired Lt-Gen Hamid Khan had resigned. Since then retired Brig Mohammad Sajjad has been serving as acting DG.

The commission had initiated 30 references in the ehtesab courts involving alleged embezzlement to the tune of Rs3.7 billion and 113 accused persons. Since its inception the commission had to face problems as it lacked infrastructure and trained staff.

It was beyond reason as to why in the first instance KPEC was set up instead of strengthening the existing ACE, and subsequently, when the ACE law was repealed then why it was restored and two parallel anti-corruption bodies were allowed to function.

Throughout existence of the KPEC, the provincial government continued to tinker with the law and instead of improving it further complications had been created.

On Aug 3, 2016, the KP Ehtesab Commission (Amendment) Bill, 2016, was passed to amend the law so as to curtail powers of the commission especially in the ongoing schemes of the government. On pretext of smooth running of the development schemes the government barred the director general from taking action in matters involving procedural lapses in any ongoing projects.

Through another amendment the commission’s directorate general was empowered to only deal with a project when it involves an amount of Rs50 million or above. The most controversial amendments were made in the KPEC Act in April 2017 as important functions were assigned to the administrative committee of the Peshawar High Court.

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