KARACHI: The Sindh High Court on Friday reserved its order on a plea of the provincial government for the constitution of a larger bench for hearing cases in which vires of the National Accountability Bureau Ordinance were challenged.
Headed by Chief Justice Sajjad Ali Shah, a two-judge bench heard the arguments of Advocate General Barrister Zamir Ahmed Ghumro during the hearing of a constitutional petition and reserved the order to a date to be later pronounced by the court’s office.
The petition was filed by Ghulam Mustafa Phul, commissioner of Shaheed Benazirabad division, who cited the federal law secretary, NAB chairman and director general, Sindh chief secretary and chairman of the provincial anti-corruption establishment as respondents.
The advocate general in his arguments submitted that the NAB law was not applicable to the provinces since 2003 because chief executive of the country had legislated NAB Ordinance under emergency.
He argued that any law enacted by parliament on provincial subject of measures to combat corruption ceased to have any effect after the six months of lifting of emergency.
The provincial government chief law officer contended that anti-corruption regime of the federal and provincial governments had remained separate from 1947 to 1997 when the federal authorities enacted unconstitutional legislation that was violation of division of powers scheme between the federal government and the provinces.
He said this was the constitutional issue of utmost importance and added that the KP High Court also constituted a five-member bench when the KP Ehtesab Act 2014 was challenged.
The petitioner said there was clear, categorical and succinct division of powers between federal and provincial legislatures and both were barred from impinging upon each other’s jurisdiction under Article 142 of the Constitution.
He said parliament could legislate on the subjects mentioned in the federal list whereas a provincial assembly could legislate on the rest of the subjects which included the provincial subject of combating corruption.
The petitioner said that the First Constitution of Pakistan of 1956 enumerated the subject of Measures to Combat Corruption in entry no 6 of the Concurrent List Part II as a concurrent subject on which both the parliament and provincial assemblies could legislate. However, under the Constitution of 1962, it became wholly provincial subject as it was not enumerated in the federal list, the only list in 1962 Constitution as excluding the subjects mentioned in the central legislative list, rest of the subjects belonged to the provinces including criminal law and procedure.
He said that in the Constitution of 1973, the subject of “Measures to combat corruption” totally became provincial as it was neither listed in the federal list nor concurrent list and under Article 142 of the Constitution.
The petitioner contended that an unconstitutional set-up enacted the NAB Ordinance, 1999 in exercise of powers under the proclamation of emergency of Oct 14, 1999 and Provisional Constitutional Order (PCO). Both the proclamation of emergency and PCO No 1 of 1999 have been declared as having been made without lawful authority and of no legal effect under Article 270AA (1) of the Constitution, he argued.
The petitioner asked the court to declare that Sections 4, 10, 15, 16A, 18, 19, 27, 28, 31C, 33B, 33C, 36 of the NAB Ordinance illegal and ultra vires of the Article 142 of the constitution as they contain references to provincial government, chief minister, speaker, deputy speaker, provincial cabinet members or other office holders, employees, departments, corporations, statutory bodies and local council of the province.
He also asked the court to declare that the federal government and NAB had no jurisdiction of investigation or trial of officers and servants performing their functions in the province of Sindh and over provincial departments, corporations, statutory bodies, banks, local councils and any provincial matter whatsoever.
Published in Dawn, June 18th, 2016