LHC seeks solid arguments on NAO

By Our Correspondent
August 31, 2018

LAHORE:The Lahore High Court on Thursday asked the National Accountability Bureau’s counsel to satisfy the court on a point that why limitation of 120 days under Article 89 of the Constitution would not hit National Accountability Ordinance 1999. As hearing started, Additional Prosecutor General of NAB Jahanzeb Bharwana extended his arguments before a full bench hearing petitions challenging the existence of the ordinance and also the conviction of Sharif family and others under the law.

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Justice Shahid Waheed headed the bench along with Justice Atir Mahmood and Justice Shahid Jamil Khan. The prosecutor stated that the ordinance was given the status of “Act” through Legal Framework Order 2002 by insertion of Article 270-AA in the Constitution. Subsequently, he said, the ordinance was approved as an Act of Parliament through 17th Amendment Act 2003. He said, later, under the 18th Amendment of 2010 certain president’s orders mentioned in Article 270-AA were declared having been made without lawful authority and of no legal effect. And in sub-article 2 of the Article 270-AA all other laws, including president’s orders, Acts, ordinances, chief executive’s orders, regulations, enactments, notifications made between October 12, 1999 and October 31, 2003, which were still in force were allowed to continue to be in force until altered, repealed or amended by the competent authority.

However, Justice Waheed observed that the 18th Amendment had not validated the previous laws made under the PCO but declared them existent to avoid a vacuum but subject to the Constitution.

Justice Khan also observed that the laws were declared existent at that time by the 18th Amendment but they (laws) were needed to be ratified by the parliament for further continuation.

Prosecutor Bharwana argued that the limitation of 120 days under Article 89 of the Constitution was not applicable to the laws made under PCO No.1 of 1999. Giving his opinion on the same point, Deputy Attorney General Imran Aziz told the bench the continuance of laws was given in the 18th Amendment under Article 270-AA of the Constitution.

However, the bench asked the prosecutor to come up with convincing arguments on the point whether the NAB ordinance was required to be promulgated by the president within the period of 120 days under Article 89 of the Constitution. The bench would resume its hearing on Friday (today) at 10am.

The other day, the deputy attorney general on behalf of the federal government had told the bench that NAB ordinance was a valid piece of law and in conformity with the Constitution. He said the Supreme Court had already settled this issue in a case famously known as “Khan Asfandyar Wali & others versus Federation” in 2001.

Senior lawyer AK Dogar of Pakistan Lawyers Foundation and others had filed the petitions assailing the conviction of the Sharifs besides challenging the existence of the National Accountability Ordinance (NAO) 1999.

The petitioners stated that the ordinance had been promulgated by military dictator retired Gen Pervez Musharraf under Provisional Constitutional Order (PCO) No 1 of 1999 as well as Order No 9 of 1999. They said the order No 9 was promulgated only to amend PCO No 1 of 1999 by inserting Section 5A (1) into it to the effect that limitation of 120 days prescribed under Article 89 of the Constitution to any ordinance by the president would not be applicable to the laws made under PCO No 1 of 1999.

However, the petitioners said under Article 270-AA of the Constitution through the 18th Amendment, the PCO No 1 of 1999 was declared without lawful authority and of no legal effect. They said once the PCO No 1 was declared without lawful authority and of no legal effect, the amendments to it made under order No 9 of 1999 would also stand lapsed and, therefore, the limitation period of 120 days prescribed under Article 89 would be applicable to the NAB ordinance.

The petitioners asked the court to declare that after the 18th amendment and insertion of Article 270-AA into the Constitution, the NAB ordinance had ceased to be the law and become non-existent and a dead letter.

They said thousands of people had been suffering from the agony of proceedings under a law which was constitutionally non-existent. Therefore all these proceedings should also be declared unlawful.

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