Government says SHC not justified in allowing NAB to complete inquiries

KARACHI: The provincial government has challenged the Sindh High Court’s (SHC) August 16 decision allowing the country’s top anti-graft watchdog to complete all its ongoing enquiries and the accountability courts to continue to see to the references brought to them.

Advocate General Zamir Ghumro submitted a review application on Tuesday to a full SHC bench hearing petitions of opposition parties against the Pakistan Peoples Party’s (PPP) controversial law to repeal the National Accountability Ordinance (NAO) 1999.

Ghumro said the SHC was not justified in passing the impugned order that had the effect of suspending the NAO repeal act, as its jurisdiction was not vested in the high court.

He said the operation and effect of the repeal act could not be suspended without determining the constitutionality or otherwise of the act, and without issuing a notice to the AG or any other government representative.

The AG said the impugned order breached immunity enjoyed by the proceedings of the provincial assembly and its members from jurisdiction of any court in terms of article 69 and 127 of the constitution, adding that encroaching upon such constitutional immunity was against the principle of trichotomy of powers.

He said that since the matter was challenged in the Supreme Court, no such order could be passed if the same was pending adjudication in the country’s top court. The interim order issued on August 16 suffers from serious legal infirmity and error apparent on the face of the record calling interference by the court in review jurisdiction, he added.

NAB’s request

The National Accountability Bureau (NAB) filed its comments on the petition, saying that to curtail NAO’s working, PPP lawmakers had introduced the impugned repeal act, which was ultra vires the constitution and liable to be struck down.

NAB Director General (Operations) Zahir Shah said that under NAO’s Section 18, it was quite clear that the watchdog had jurisdiction throughout the country in respect of enquiring, investigating and prosecuting white-collar crimes.

Shah said NAB needed no government authorisation for an enquiry, investigation or reference, adding that the top court had earlier ruled that NAO was neither ultra vires the constitution nor did it invade provincial autonomy.

Referring to the SC’s Khan Asfandyar Wali case, he said Article 143 of the constitution stated that if a provincial act conflicted, was inconsistent with or repugnant to a federal statute, then the latter would prevail even if passed before the former.

The watchdog requested the SHC to declare the NAO repeal act ultra vires the constitution. NAB’s counsel said the provincial government was interfering in the bureau’s working. The federal law officer supported the petition and sought time to file comments.

Headed by Chief Justice Ahmed Ali M Sheikh, the bench extended the time period of the interim order, directed the Sindh chief secretary to ensure that the court’s verdict was implemented in letter and spirit, and issued notices to relevant parties on the review application for September 11.  

A detailed list

The watchdog also filed a detailed list of members of the provincial assembly, senior bureaucrats, former lawmakers and retired government officers facing the watchdog’s mega corruption cases: 19 former and present MPAs are facing enquiries and two each investigations and trial in accountability courts.

NAB identified ministers Gian Chan Israni, Dost Mohammad and Ziaul Hasan Lanjar, MPAs Mohammad Ali Malkani, Nawab Taimur Talpur, Dr Abdul Sattar Rajper and Haji Abdul Rauf Khoso, former MPAs Nasarullah Baloch, Ghulam Qadir Palejo and Ejaz Shah Sherazi, and former ministers Rauf Siddiqui, Adil Siddiqui and Syed Mustafa Kamal facing enquiries.

Meanwhile, former information minister Sharjeel Memon, former industries minister Agha Tariq and former federal petroleum minister Dr Asim Hussain are facing trial in accountability courts.

The watchdog told the court that 782 former and present functionaries of the provincial government were facing trial in accountability courts, 372 investigations and 340 enquiries.

NAB identified former SHC judge and Sindh Land Regularisation Committee Chairman Justice (retd) Zahid Kurban Alvi, former land utilisation secretary Shazar Shamon, former agriculture secretary Shahid Gulzar Sheikh, former Board of Revenue senior member Syed Ghulam Ali Shah Pasha, former LU secretary Mohammad Ali Shah, former Sindh Building Control Authority DG Ghulam Qadir Kaka and former local government secretary Ali Ahmed Lund among bureaucrats facing enquiries, investigations and trials.

As many as 12 functionaries of the federal government are facing enquiries, 25 investigations and 13 trials. They include former Sindh police chiefs Ghulam Shabbir Sheikh and Ghulam Haider Jamali, former chief secretaries Raja Mohammad Abbas and Siddique Memon, and Hyderabad SSP Pir Fareed Jan Sarhandi.

The Muttahida Qaumi Movement’s Farooq Sattar, the Pakistan Muslim League-Functional’s Shaharyar Mahar and other petitioners earlier claimed that the PPP-led provincial government had “unlawfully passed the bill without any debate in the assembly to stall NAB’s enquiries, investigations and references against bureaucrats and politicians”.

They said Governor Mohammad Zubair had expressed his reservations on the bill and returned it to the legislature for reconsideration, but PPP lawmakers brought “the same unconstitutional bill to the House without any amendment” and got it passed.

They added that the controversial law could not override the provisions of articles 142 and 143 of the constitution, and that the accountability act could not have any bearing on the operation of the NAO 1999.

The petitioners’ counsels Farogh Naseem and Faisal Siddiqui said the controversial law was creating hurdles in NAB’s functioning, adding that the provincial government was restraining its departments from cooperating with the watchdog.