NAO lapsed after 18th amendment, says Sindh AG

The Sindh advocate general has said that the National Accountability Ordinance (NAO) 1999 lapsed after the 18th amendment and that all proceedings are coram non judice (before a judge not competent or without jurisdiction).

The federal part of NAO or proceedings thereunder in any manner whatsoever cannot be continued, as the same are without force of the law, AG Zamir Ahmed Ghumro wrote in a letter addressed to the law & parliamentary affairs secretary.

The AG office has been asked to provide its point of view regarding the legal effect of the federal part of the NAO, as the Sindh Assembly had already repealed its provincial part under the constitution.

According to sources, the AG thoroughly considered the status of the ordinance in the light of the law, the constitution and the law lain down by the Supreme Court in the National Reconciliation Ordinance (NRO) case and other important and connected cases, and found striking similarities between the NAO 1999 and the NRO 2007.

The AG said the NRO was enacted in pursuance of the proclamation of the November 3, 2007 emergency, while NAO was enacted under the proclamation of the October 14, 1999 emergency and the Provisional Constitutional Order (PCO) 1999.

He was of the view that the NRO was protected under Article 270AA of the constitution, whereas the NRO and NAO purportedly derived their legality from the article.

He said the country’s top court had held in the NRO case and the parliament in 18th amendment in 2010 that proclamation of the emergency on November 3, 2007 and October 14, 1999 were illegal and without legal effect respectively.

He added that the SC had observed in the NRO judgment that the parliament had no power to affirm or validate the action of the usurper because he had no authority to enact the law.

Ghumro said that when the October 14, 1999 emergency was declared to have been announced without lawful authority and no legal effect in 2010, the ordinances issued from October 14, 1999 to October 2002 could not have been validated or continued in force by the parliament under Article 270AA unless passed by the parliament or the provincial assemblies as per the provisions of articles 89 and 128 of the constitution.

He said the parliament could declare the proclamation of the October 14, 1999 emergency and the PCO 1999 as having been made without lawful authority and of no legal effect and repeal the 17th amendment, but it could not affirm, validate or continue in force the NAO 1999 and other such laws without removing the basis of judgment of the SC; therefore, NAO being a temporary law for 120 days lapsed after the 17th amendment was repealed in 2010.

The federal part of NAO or proceedings thereunder in any manner whatsoever could not be continued, as the same are without force of the law, the AG said in his opinion, adding that the NAO 1999 had lapsed after April 10, 2010 when the two instruments under which it was enacted were declared illegal and without legal effect by the parliament.

Ghumro said that it had protection under the 17th amendment, which was repealed by the parliament and as per the top court’s 2009 judgment in the NRO case that the parliament was not empowered to provide protection to the NAO 1999 under Article 270AA of the constitution in 2010.