Comparison of Provincial Legislation in 2016 – Khyber Pakhtunkhwa
This article is a continuation of my previous article in which I compared legislation by different provincial legislatures in the last year. I started off with analysing some of the laws passed by the Balochistan Assembly. Moving forward, in this article I will discuss the laws of the Khyber Pakhtunkhwa Assembly and will analyse some of the most important, noteworthy or controversial laws passed by the Assembly in the last year.
The Khyber Pakhtunkhwa Assembly passed the following 30 laws in the year 2016 [i]:
- The Khyber Pakhtunkhwa Medical Teaching Institutions Reforms (Amendment) Act, 2016.
- The Khyber Pakhtunkhwa Public Service Commission (Amendment) Act, 2016.
- The Khyber Pakhtunkhwa Antiquities Act, 2016.
- The Khyber Pakhtunkhwa Civil Servants Retirement Benefits and Death Compensation (Amendment) Act, 2016.
- The Khyber Pakhtunkhwa Child Protection and Welfare (Amendment) Act, 2016.
- The Khyber Pakhtunkhwa Health Foundation Act, 2016.
- The Khyber Pakhtunkhwa, Appointment of GAVI, JICA, Adhoc and Contract Employees Act, 2016.
- The Khyber Pakhtunkhwa Finance Act, 2016.
- The Khyber Pakhtunkhwa Ehtesaab Commission (Amendment) Act, 2016.
- The Khyber Pakhtunkhwa Galiyat Development Authority Act, 2016.
- The Khyber Pakhtunkhwa Prevention of Conflict of Interest Act, 2016.
- The Khyber Pakhtunkhwa Universities (Amendment) Act, 2016.
- The Khyber Pakhtunkhwa Local Government (Amendment) Act, 2016.
- The Khyber Pakhtunkhwa Limitation (Amendment) Act, 2016.
- The Khyber Pakhtunkhwa Whistleblower Protection and Vigilance Commission Act, 2016.
- The Khyber Pakhtunkhwa Prohibition of Interest on Private Loans Act, 2016.
- The Khyber Pakhtunkhwa Adhoc Employees of Directorate of Information Technology (Regularization of Services) Act, 2016.
- The Khyber Pakhtunkhwa Taking Over of the Industrial Estate or Economic Zones Act, 2016.
- The Khyber Pakhtunkhwa Faculty of Paramedical and Allied Health Sciences Act, 2016.
- The Khyber Pakhtunkhwa Higher Education Academy of Research and Training Act, 2016.
- The Khyber Pakhtunkhwa Tibb and Homeopathic Employees (Appointment)Act, 2016.
- The Khyber Pakhtunkhwa Tuberculosis Notification Act, 2016.
- The Brains Institute Act, 2016.
- The Khyber Pakhtunkhwa Blood Transfusion Safety Authority Act, 2016.
- The Khyber Pakhtunkhwa Urban Mass Transit Act, 2016.
- The Khyber Pakhtunkhwa Commission on the Status of Women Act, 2016.
- The Khyber Pakhtunkhwa Lissaail-e-Wal Mahroom Foundation(Amendment) Act, 2016.
- The Khyber Pakhtunkhwa Public Procurement Regulatory Authority (Amendment) Act, 2016.
- The Khyber Pakhtunkhwa Boilers and Pressure Vessels Act, 2016.
- The Khyber Pakhtunkhwa Minerals Sector Governance Act, 2016.
I will discuss five of the above-mentioned laws in detail.
The Preamble of the Act states that Islam “unequivocally” and “explicitly” prohibits the charging of interest and that the Constitution of Islamic Republic of Pakistan obliges the state to take steps to enable Muslims to order their lives in accordance with the basic concepts of Islam and that this legislation is to renounce the “mischief” of private money lending and connected matters.
The Act, which was very well received by all the religious circles throughout the country, prohibits private money lending for any purpose to anyone for the purpose of gaining interest thereon. The punishment for carrying on interest based transaction in the province is to be a minimum of 3 years and a maximum of 10 years, along with a fine of Rs. 1 million. Anyone abetting, aiding or assisting the money lender would also be liable to the same punishment.
Another important matter or the mischief curbed by the Act is the intimidation, harassment or molestation of any borrower or debtor to pay back any loan or interest thereon. The private money lenders have, throughout history, been known not only to exploit the debtors but also to act as goons, oppressors and blackmailers in the cases where their money gets stuck. This problem has not only been faced by the debtors of private money lenders but also by the debtors of big banks and even customers of credit cards. Due to this, the State Bank of Pakistan (SBP) has time and again asked banks not to harass the defaulting clients and this direction was specifically addressed to the banks “to ensure that their recovery or collection officers do not resort to any verbal or physical harassment of delinquent credit card holders, their family members, referees and friends during recovery and collection efforts” (Dawn, 18th January, 2009). Loan Recovery Parameters were also announced by the State Bank in 2008. However, because the private money lenders are not regulated by the SBP or any other regulatory body, this had to be taken care of with a separate law. The punishment of this kind of molestation is now a maximum of 5 years with a fine of maximum Rs. 500,000.
With the enforcement of this law, all previous interest obligations have been extinguished, while the interest already paid may be settled against the principal amount of the debtor.
Another interesting and much appreciated law passed by the Khyber Pakhtunkhwa Assembly in 2016 was the Khyber Pakhtunkhwa Whistleblower Protection and Vigilance Commission Act, 2016. The Act not only encourages the disclosure of “irregular, illegal or corrupt practices” but also rewards individuals who make such disclosures within their knowledge. Section 2 (m) defines the whistleblower as “a person or an agency, that discloses public interest information under this Act.”
To further the objectives of this Act, a commission called the Khyber Pakhtunkhwa Whistleblower Protection and Vigilance Commission has been established, consisting of three Commissioners for a period of 3 years with the ineligibility to be appointed for a second term. One of the Commissioners is appointed as the Chair. The Commission has been given wide powers under section 5 of the Act which also include the setting up of organisational structures as well as conduct inquiries, select employees/advisors/experts, and “make recommendations” to the concerned authorities regarding violations of public interests.
Even though the Chair of the Commission is made responsible for day to day operations and for acting as the Principal Accounting Officer of the Commission, all the decisions of the Commission are to be taken by the majority of Commissioners.
The protection of the whistleblower is the duty of the Commission and the Commission has to ensure that such whistleblower is not “victimised by disadvantageous measures or otherwise”. Moreover, the modus operandi of the inquiry would be that an officer would be authorised by the Commission and would make a preliminary inquiry within 30 days regarding public interest disclosures. Further inquiry shall be made after the preliminary report and with the approval of the Commission and if it is established that a violation of public interest has taken place, immediate steps shall be taken to prevent such violation of public interest.
It must be noted that the objectives of the Act are not only to protect a whistleblower but also to “give them rewards for such public interest disclosure”. The Act, though discusses the protection of whistleblowers, does not talk about any “reward” for them. Maybe they are left to be dealt with by the regulations of the Commission to be set up under section 17 of the Act.
This Act is directed towards public office holders to establish some principles to prevent conflicts arising between “private interests and public duties” of such public office holders.
As per S. 3 of the Act, a commission shall be established by the government with the name of “Khyber Pakhtunkhwa Prevention of Conflict of Interest and Ethics Commission” comprising of a chair and two members to be appointed by the provincial government. They are to be selected for a term of 3 years and are not eligible to be reappointed.
Section 6 of the Act imposes a duty upon a public officer to inform the higher authority to recuse him or her from any “discussion, decision, debate or vote” in any matter in which he or she would be in a conflict of interest. Section 7 of the Act obliges a public officer to sign a “summary statement” containing information to be prescribed by the commission through regulation. Moreover, the Commission will annually review each public office holder’s information in such statements as to the assets, interests and measures taken to satisfy obligations by such public officer under this Act. On the other hand, the Commission may waive or reduce any applicable period for any public officer under this act, considering the factors mentioned in S. 10 of the Act.
Any violation of the Act would be penalised firstly with a public declaration that such officer has a conflict of interest and then with other penal laws for the time being in force, disciplinary action, penal action and a monetary penalty of rupees five hundred thousand. Any citizen of Pakistan, by providing his or her CNIC details, would also be able to make applications to the Commission against any public office holder who has contravened any provisions of this Act.
The Corruption Perception Index of Transparency International ranked Pakistan 116th out of the total of 176 countries in 2016 (176 being the most corrupt)[ii]. Despite there being laws to punish the corrupt elements in society, there has been a long need to establish a framework that prevents corruption from happening rather than going after the corrupt “after” corruption has occurred. The establishment of the Khyber Pakhtunkhwa Prevention of Conflict of Interest and Ethics Commission, therefore, is a step in the right direction.
This Act aims to “reconstitute and reorganize the Commission on the Status of Women” in Khyber Pakhtunkhwa to improve its performance for “promoting women’s rights and eliminate all forms of discrimination against women and matters connected thereto”.
The provincial government shall reconstitute the Commission on the Status of Women which shall be a body corporate, having its permanent secretariat at Peshawar and its district committees at the district level.
The newly reconstituted Commission shall consist of 15 official and non-official members including its Chair to be appointed by the provincial government. The Chair and at least 8 other non-official and 2 official members of the Commission must be females. Moreover, one member of the Commission shall be from amongst minorities of the province. The tenure of the members shall be 3 years, extendable to one more tenure, and the Secretary of the Commission shall be a government officer of the rank of BPS-19 appointed by the government for a tenure of 3 years.
As per section 8 of the Act, the Commission has a wide range of powers and functions. In addition to its administrative functions involving management of the Commission, its budget and District Committees, the Commission has the following important functions towards women’s rights:
- To examine the “policy, program, projects and other measures” of the government regarding women development and gender equality and make recommendations.
- To review all provincial laws and regulations affecting the rights and status of women and suggest any changes or new laws to eliminate any discrimination as per Islamic injunctions, the Constitution, and international covenants.
- To review the mechanism and institutional procedures for the redress of violation of women’s rights, check the facilities of social care and take initiatives for better management and efficient provision of justice through relevant forums and authorities.
- To examine and review the policies and programs of “each department” to ensure that they address gender concerns adequately.
- To perform any other function assigned by the government.
It must be noted that the Commission on Status of Women is a UN body that first met in the year 1947 and drafted international conventions on women’s rights. In the Fourth World Conference on Women, the Beijing Declaration and Platform for Action was adopted[iii]. In Pakistan, the National Commission on the Status of Women was established in the year 2000 as an outcome of the Beijing Declaration and Platform for Action[iv]. The provinces have followed the same principles in establishing the commissions since most of the relevant matters relating to such laws are provincial subjects as per the Constitution of Pakistan. We hope that the bodies set up under these frameworks are knowledgeable and efficient in fulfilling their roles, as suggesting legal reforms related to a particular area not only requires knowledge of the law but also of the culture of an area and the problems of those people residing in that area.
Through this Act, an “academy for imparting training to the academic and managerial staff of the Higher Education, Archives and Library Department” has been established to develop their “capacity, professional competence, research and ethical standards” for “efficient dispensation of knowledge and skills”.
The Khyber Pakhtunkhwa Higher Education Academy of Research and Training (HEART) would provide training to academic and managerial staff of the institutions related to higher education. This would inculcate in the staff of such institutions, the ethical and educational standards as well as the competence of research and dispensation of knowledge. The procedure to meet these aims and related objectives are given in Section 4 of the Act.
To make these ambitious ends meet, the body shall lay down policies and programs for trainings, adopt and amend curriculums, appoint advisors, consultants, faculty members, etc. to carry out the objectives, in addition to the supervisory and managerial functions of the body.
The Director of the institution would be appointed by the provincial government and the Chair of the body would be the Minister for Higher Education of the province.
With the establishment of such a body, one hopes that in coming times the province would have a dedicated academic and managerial staff in all educational institutions with the basic competence of research and academic skills. If these objectives are materialised, they will definitely have positive implications on the quality of education in the province and also the potential of bringing a big change in the economic conditions and life standards of the people.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.