The Sindh Assembly on July 3 passed a bill for repealing the National Accountability Ordinance, 1999 to the extent of Sindh province thus generating a debate whether a provincial legislature could repeal a federal statute.
Following passage of the ‘National Accountability Ordinance 1999 Sindh Repeal Bill, 2017,’ it was referred to the Sindh governor for getting his assent under Article 116 of the Constitution of Pakistan. However, the governor returned the bill expressing certain reservations about its passage.
The provincial government now intends to again pass the bill. If the bill is again passed, with or without amendments, it shall be again presented to the governor and the governor shall give his assent within 10 days, failing which such assent shall be deemed to have been given.
The proposed law is aimed at ending the jurisdiction of National Accountability Bureau (NAB) in Sindh province and transferring all the pending inquiries, proceedings and investigations of the NAB to the Sindh Anti-Corruption Establishment (ACE). While tabling the bill the provincial law minister, Ziaul Hassan, had called the National Accountability Ordinance (NAO), commonly known as NAB Ordinance, a black and draconian law. He had also pledged that the provincial government would introduce a transparent anti-corruption law within the next 30 days.
Prior to this bill, Senator Taj Haider of Pakistan Peoples Party had tabled the National Accountability (Amendment) Bill, 2015, in the Senate, which was aimed at deleting provisions of the NAB Ordinance related to exercising jurisdiction by the NAB in departments of provincial governments.
The preamble of the said bill provided that after passage of the Constitution (Eighteenth Amendment) Act, 2010, the subject of anti-corruption is a residuary subject and there is a need to constitute autonomous accountability bureau at the level of provinces.
“It is, therefore, expedient that while the Provincial Accountability Bureaus deal with the cases within the respective provinces, the National Accountability Bureau performs its duties more diligently in the departments of the Federal Government,” the statement of objects of that bill states.
However, in July 2016 the Senate rejected the National Accountability (Amendment) Bill, 2015.The treasury members in the Senate had opposed the bill.
Ever since the Constitution (Eighteenth Amendment) Act, 2010, was enacted the issue of introducing an anti-corruption law by the provinces in the presence of the NAB ordinance, remains under discussion. In Khyber Pakhtunkhwa, the present government had passed the KP Ehtesab Commission Act (KPECA) in 2014. However, in that law the powers of NAB have not been touched and both the KP Ehtesab Commission (KPEC) and NAB are empowered to function in the province. Apart from that the KP Anti- Corruption Establishment has also been in the field.
Through the 18th Amendment the Federal Legislative List part-I and part-II were revised and the erstwhile Concurrent List to the Constitution was abolished. Apart from the subjects mentioned in the Federal Legislative List, all the remaining subjects are treated as residuary subjects over which the provincial legislatures are empowered to legislate.
However, under Article 142 (b) of the Constitution both the Parliament and a Provincial Assembly shall have powers to make laws with respect to criminal law, criminal procedure and evidence. Furthermore, under Article 143 if any provision of an Act of a provincial assembly is repugnant to any provision of an Act of the Parliament, which the Parliament is empowered to enact, then the Act of Parliament shall prevail and the Act of the provincial assembly shall, to the extent of the repugnancy, be void.
The issue of enactment of the provincial law in the presence of NAB Ordinance also came under discussion before the Peshawar High Court when several persons affected by the KPECA had challenged the said law through separate writ petitions. A five-member larger bench headed by then chief justice Mazhar Alam Miankhel (now judge of the Supreme Court) had delivered its judgment on Dec 23, 2015, through which the court had validated the provincial Ehtesab law.
The petitioners in those cases were of the view that under Article 143 of the Constitution, it is the federal law, which shall prevail over the provincial law and as the National Accountability Ordinance, 1999, had already been promulgated by the federal government, therefore, the principle of ‘occupied field’ would attract to the case and the Act of the Provincial Assembly, being in conflict with the provisions of the Constitution, was required to be declared as ultra vires of the Constitution.
While deciding the petitions, the high court had dealt with the NAB Ordinance under Article 142 (b) of the Constitution and considered it a criminal law regarding which both the parliament and a provincial assembly have the powers to legislate.
About the question that KPECA was repugnant to NAB Ordinance, 1999, the court observed that the question of repugnancy becomes material when the law made by parliament and the law by the provincial legislature on the same subject are contradictory to each other, dealing with the same matters, but where the two laws can simultaneously be run without overlapping rather are supplemental in nature, the question of repugnancy would not arise.
The bench had ruled that one of the tests of repugnancy is that there is a direct conflict between the two laws which are said to be repugnant to each other. “There should be a presumption in favour of the validity of a law and every effort should be made to reconcile them and construe both so as to avoid their repugnancy, which in other case must exist in fact and not merely on a possibility.”
The bench had ruled that a comparison of the two laws would reveal that there is no inconsistency in the actual terms of the NAB Ordinance and the KP Ehtesab Act.
The court had also discussed the issue if parallel jurisdiction is assumed in the matter both by the NAB and KPEC and ruled that Section 35 of the Act left enough room for the federal law, in that, the functionaries under the Ehtesab Commission Act would not initiate proceedings in a matter, for which a federal agency has already taken cognizance of.
Legal experts believe that if the NAB law is treated as a criminal law then keeping in view provisions of Article 142 and 143 of the Constitution, the Sindh Assembly is not empowered to repeal the NAB Ordinance in the province. The Sindh government could introduce a law for functioning of a provincial anti-corruption body, but it cannot stop NAB from functioning in the province.
Published in Dawn, July 17th, 2017