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November 16, 2019

Accountability and the law

Opinion

November 16, 2019

The recent accountability regime in the form of the National Accountability Ordinance was introduced in 1999 under the Proclamation of Emergency and Provisional Constitutional Order no 1 of October 14, 1999.

The ordinance was protected under the 17th Amendment and was placed in the Sixth Schedule of the constitution, not to be repealed or amended without prior sanction of the president.

Under the 18th Amendment, not only was the 17th Amendment was repealed and the Sixth Schedule to the constitution omitted but Article 270AA declares that “the Proclamation of Emergency of October 14, 1999 and Provisional Constitutional Order no 1, 1999 are hereby declared to have been made without lawful authority and of no legal effect”. Thus the NAB Ordinance was totally shorn of any legality.

Earlier, in the same manner, the Supreme Court of Pakistan in the Sindh High Court Bar Association case (PLD 2009 SC 879) had declared the Proclamation of Emergency of November 3, 2007 illegal and without legal effect and all ordinances issued from November 3, 2007 to December 15, 2007 were declared to be unconstitutional.

The Supreme Court in the above case also declared that parliament henceforth would have no power to validate any act or ordinance of a dictator or usurper.

As parliament possesses no power after 2009 to validate any act or ordinance of a dictator after the declaration of the Supreme Court so after the repeal of the 17th Amendment and omission of the Sixth Schedule to the constitution in 2010 under which the NAB Ordinance had protection, the saving clause of Article 270AA doesn’t provide any protection to the NAB Ordinance. It’s no more a law on the statute book.

The legality of the accountability regime right from 1949 has been questionable. After the dismissal of three elected governments of Sindh, former NWFP and Punjab by 1949, the Constituent Assembly enacted the Public and Representative Offices Disqualification Act (PRODA) in 1949 which envisaged a seven-year sentence and disqualification from public office for corrupt practices.

Although post-election disqualification in all constitutions has been the sole preserve of parliament till today – also provided in the 1973 constitution in Article 63 (2) – this ploy was invented, though unconstitutionally, to punish errant politicians in order to gain their loyalties.

The PRODA was repealed all of a sudden in September, 1954 when the central government needed the support of Ayub Khuhro, the former chief minister of Sindh for its One-Unit Plan.

There was no accountability law from 1954 to 1959 when General Ayub enacted the Elective Bodies Disqualification, Order (EBDO) in 1959 with similar punishment and disqualification as provided in PRODA but it was repealed in 1960. After that, there was no such law until two similar laws were introduced by the government in early 1977.

In all the above laws, what was common was that the provincial office-holders including MPAs and provincial ministers were to be prosecuted by provincial governments or with their permission.

General Zia in November 1977 introduced two orders: the Holders of Representative Offices (Punishment for misconduct) Order, 1977 and the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977 which had similar sentencing and disqualification provisions but their distinguishing feature was that even provincial office-holders, unlike under previous laws, were to be prosecuted by the centre. This was the deviation which has continued till today – albeit unconstitutionally.

A political setup was ushered into in 1988 but Zia orders remained redundant until the PML-N government in 1997, like the present PTI setup, laid emphasis on accountability. It enacted the Ehtsab Act, 1997 which was not only made applicable to provinces but also to government servants. Previously, both federal and provincial employees were regulated only under FIA and Anti-Corruption Acts respectively.

The subject of anti-corruption was concurrent in the constitution of 1956 but it was not enumerated in the federal or concurrent lists of the 1962 and 1973 constitutions, so it is purely a provincial subject from 1962.

Parliament is prohibited under Article 142(c) to legislate on any provincial subject except in two situations: first, when provinces give consent under Article 144, and second under a valid emergency under articles 232 and 234 of the constitution. In the first situation, the provincial assembly can repeal an act of parliament on a provincial subject any time and in the second, after expiration of six months of emergency the laws enacted by parliament on provincial subjects cease to have effect.

After the omission of the Sixth Schedule in 2010, the provinces amended or repealed the Police Order, 2002 and local government ordinances. Sindh also repealed the National Accountability Ordinance, 1999 in 2017 to its extent.

The National Accountability Ordinance Sindh (Repeal) Act 2017 was challenged in the Sindh High Court which held that NAB could only continue with old references and investigations but from 2017, NAB and the courts are also entertaining fresh inquiries, investigations and references under a repealed law. Even former president Asif Ali Zardari and his sister are being held under this repealed law.

Pakistan is supposed to be a civilized federation based on rule of law and the constitution. The continuation of this unconstitutional accountability regime speaks volumes about the nature of our federal, provincial and other institutions. Will the citizens of Pakistan be prosecuted, charged, maligned, defamed or sentenced under a law which neither exists at the federal level nor applies to the provinces – with Sindh already having repealed it?

The writer is a barrister-at-law and former advocate general of Sindh.

Twitter: @zamirghumro.

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