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LAHORE: The Lahore High Court has ruled that after the promulgation of the 18th Amendment the National Accountability Ordinance (NAO) 1999 still exists.

A three-judge bench headed by Justice Shahid Waheed declared this on Friday through a short order dismissing a set of petitions challenging the existence of the ordinance. Justice Atir Mahmood and Justice Shahid Jamil Khan were other members of the bench.

Senior lawyer AK Dogar of the Lawyers Foundation for Justice and others had filed the petitions also assailing the conviction of the Sharif family under the NAO.

In his rebuttal to the arguments of the federal government and the NAB, Advocate Dogar argued that the impugned ordinance was a creation under the Provisional Constitutional Order (PCO) promulgated by retired Gen Pervez Musharraf.

He said the PCO had been amended three times, however, the 18th amendment declared it null and void.

The lawyer pointed out that the 18th Amendment Act 2010 had declared all acts and laws made by dictator as without lawful authority. He said the Supreme Court also in its 2009 judgment declared the PCO of Musharraf void ab initio meaning thereby the NAO stood repealed since 2000.

He said there would be no vacuum, if the court declared the NAO as non-existent, as Eihtesab Act 1997 would stand reinstated. It was repealed under section 35 of the impugned ordinance. Barrister Ahmad Faheem Bhatti and lawyers of other petitioners also submitted their counter arguments.

After hearing the concluding arguments from both sides, the bench rose and assembled after a few minutes only to announce the short order.

Earlier, NAB Additional Prosecutor General Jahanzeb Bharwana also argued that the NAO had been 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 the 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enactments, notifications made between Oct 12, 1999 and Oct 31 2003, which continue to be in force until altered, repealed or amended by the competent authority.

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.

The petitioners had stated that the impugned ordinance had been promulgated by Musharraf under 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 the 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.

They said thousands of people had been suffering from the agony of proceedings under a law which was constitutionally non-existent. Therefore all these proceedings should also be declared unlawful.

Published in Dawn, September 1st, 2018