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LAHORE: A Lahore High Court full bench on Thursday asked the National Accountability Bureau (NAB) counsel to satisfy the court on a point as to why the National Accountability Ordinance 1999 was not required to be re-promulgated by president within the period of 120 days under Article 89 of the Constitution.

Earlier, NAB’s Additional Prosecutor General Jahanzeb Bharwana resumed his arguments before the bench seized with petitions challenging the existence of the ordinance and also the conviction of the Sharif family and others under the law.

Justice Shahid Waheed headed the bench which also has Justice Atir Mahmood and Justice Shahid Jamil Khan.

The prosecutor stated that the ordinance was given the status of “Act” through the Legal Framework Order 2002 by insertion of Article 270-AA in the Constitution. Subsequently, he said, the ordinance was approved as an Act of Parliament through 17th Amendment Act 2003.

He said, later, under the 18th amendment of 2010 certain president’s orders mentioned in Article 270-AA were declared as having been made without lawful authority and of no legal effect. And in sub-article 2 of the Article 270-AA all other laws including president’s orders, Acts, ordinances, chief executive’s orders, regulations, enactments, notifications made between Oct 12, 1999 and Oct 31 2003, which were still in force were allowed to continue to be in force until altered, repealed or amended by the competent authority.

However, Justice Waheed observed that the 18th amendment had not validated the previous laws made under the PCO but declared them as existent to avoid a vacuum but subject to the Constitution.

Justice Khan also observed that the laws were declared existent at that time by the 18th amendment but they (laws) were needed to be ratified by parliament for further continuation.

Prosecutor Bahrwana argued that the limitation of 120 days under Article 89 of the Constitution was not applicable to the laws made under PCO No 1 of 1999.

Giving his opinion on the same point, Deputy Attorney General Imran Aziz told the bench that the continuance of laws was given in the 18th amendment under Article 270-AA of the Constitution.

However, the bench asked the prosecutor to come up with convincing arguments on the point whether the NAB ordinance was required to be promulgated by the president within the period of 120 days under Article 89 of the Constitution. The bench would resume its hearing on Friday (today) at 10am.

The other day, the deputy attorney general on behalf of the federal government had told the bench that the NAB ordinance was a valid piece of law and in conformity with the Constitution. He said the Supreme Court had already settled this issue in a case famously known as “Khan Asfandyar Wali & others versus Federation” in 2001.

Senior lawyer A.K. Dogar of the Lawyers Foundation for Justice and others had filed the petitions assailing the conviction of the Sharifs besides challenging the existence of the National Accountability Ordinance (NAO) 1999.

The petitioners stated that the ordinance had been promulgated by military dictator retired Gen Pervez Musharraf under the Provisional Constitutional Order (PCO) No 1 of 1999 as well as Order No 9 of 1999. They said the Order No 9 was promulgated only to amend PCO No 1 of 1999 by inserting Section 5A (1) into it to the effect that limitation of 120 days prescribed under Article 89 of the Constitution to any ordinance by the president would not be applicable to the laws made under PCO No 1 of 1999.

However, the petitioners said under Article 270-AA of the Constitution through 18th amendment, the PCO No 1 of 1999 was declared without lawful authority and of no legal effect. They said once the PCO No 1 was declared without lawful authority and of no legal effect, the amendments to it made under order No 9 of 1999 would also stand lapsed, therefore, the limitation period of 120 days would be applicable to the NAB ordinance.

Published in Dawn, August 31st, 2018