SHC seeks comments on petition challenging vires of NAB Ordinance

Published June 20, 2015
The petition was filed by Shaheed Benazirabad Division Commissioner Ghulam Mustafa Phul who had also moved the SHC for pre-arrest bail. — PPI/File
The petition was filed by Shaheed Benazirabad Division Commissioner Ghulam Mustafa Phul who had also moved the SHC for pre-arrest bail. — PPI/File

KARACHI: The Sindh High Court on Friday directed the federal law secretary, chairman of the National Accountability Bureau, chief secretary and others to file their respective comments on a constitutional petition challenging the vires of the NAB Ordinance, 1999.

The petition was filed by Shaheed Benazirabad Division Commissioner Ghulam Mustafa Phul who had also moved the SHC for pre-arrest bail.

A two-judge bench, headed by Justice Sadiq Hussain Bhatti, gave the petitioner bail in the sum of Rs500,000 and put off the hearing to July 3.

The petitioner, represented by Barrister Zamir Hussain Ghumro, filed the petition apprehending arrest by NAB that had earlier issued him two notices seeking details of land owned by the province.

His counsel contended that NAB had no jurisdiction to prosecute, investigate, inquire or file reference against an employee belonging to the provincial service or an employee working in a provincial government department, corporation, statutory body, bank, co-operative, local council or authority under the Constitution.


Shaheed Benazirabad commissioner granted pre-arrest bail


The counsel said that the NAB authorities had been threatening the petitioner of arrest and dire consequences from time to time and any coercive action against his client would jeopardize his career, reputation and health.

He said the respondents were transgressing the law and Constitution and framing employees working in the provincial government without any authority and jurisdiction.

The petitioner said that provincial government employees were not constitutionally subject to the jurisdiction and authority of NAB.

The counsel argued that a federal law called the National Accountability Bureau Ordinance was enacted in 1999 in exercise of the “Powers under Proclamation of the Fourteenth day of October, 1999 and the Provisional Constitutional Order (PCO) No. 1 of 1999” by the unconstitutional President of Pakistan in order to take measures to eradicate corruption.

Barrister Ghumro said that both the Proclamation of the 14th October 1999 and Provisional Constitution Order No.1 of 1999 had already been declared as having been made without lawful authority and of no legal effect under article 270AA (1) of the Constitution.

He said that this piece of law issued through the presidential decree under the Proclamation of Emergency of 14th October, 1999 was surprisingly also made applicable to the provinces in violation of Article 142 and Entry no 55 of the Federal Legislative List Part 1 and in disregard of the fact that the Parliament has no power under Article 142 of the Constitution to legislate for the provincial subject of combating corruption.

Barrister Ghumro submitted that there was clear, categorical and succinct division of powers regime between the federal and provincial legislatures and both are barred under the constitution to impinge upon each other’s jurisdiction under Article 142 of the Constitution. He said the parliament could legislate on the subjects mentioned in the federal list whereas the provincial assembly could legislate on the rest of remaining subjects including the provincial subject of combating corruption.

Under this constitutional arrangement, the counsel said, the federal and provincial governments had historically separate anti-corruption regimes for their respective subjects since1935 when for the first time federation was created.

He said that the 62-year constitutional path was deviated in 1997 when the federal government enacted Ehtsab Act and again in 1999 again when an unconstitutional set up enacted NAB Ordinance.

The petitioner prayed to the court to declare that various provisions of the NAB Ordinance, 1999 including Sections 4, 10, 15, 16A, 18, 19, 27, 28, 31C, 33B, 33C, 36 so far as they contain references to the provincial government, chief minister, speaker, deputy speaker, provincial cabinet members or other office holders, employees, departments, corporations, statutory bodies, local councils were ultra vires to the Article 142, entry nos. 55 and 56 of the Constitution.

It was further prayed to the court to declare that the constitution of accountability courts under the NAB Ordinance, 1999 was illegal, unconstitutional and without jurisdiction.

The petitioner requested the court to set aside the operation of impugned and any further such notices.

Published in Dawn, June 20th, 2015

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