KARACHI: The Sindh government challenged in the Supreme Court on Thursday an amendment made to the National Accountability Ordinance, better known as the NAB law, through which the federal government has attempted to withdraw ‘better class’ in prison from an accused person facing a Rs50 million, or more, embezzlement case.

The provincial government — led by the Pakistan Peoples Party, whose co-chairman and former president Asif Ali Zardari, his sister Faryal Talpur, Sindh Assembly Speaker Agha Siraj Durrani and other leaders are currently detained in Rawalpindi’s Adiala jail and Karachi’s central prison — challenged the amendment made by the ruling Pakistan Tehreek-i-Insaf-led federal government through a presidential ordinance.

Talking to Dawn, Sindh Advocate General Salman Talibuddin said that the petition was likely to be taken up at the apex court’s principal seat in Islamabad “since it involves a matter directly concerning the provincial and the federal governments and there is no dispute of jurisdictions.”

The provincial secretary for law and parliamentary affairs filed the petition with the SC’s Karachi Registry asking the apex court to declare the 2019 ordinance as illegal and of no legal effect for being passed without legislative competence and in violation of the constitutional principles.

PPP leaders Asif Zardari, Faryal Talpur, Siraj Durrani and others likely to be hit by the amendment

Citing the federal government as respondent through the secretary of the cabinet division, the Sindh government said shortly after the president promulgated the ordinance, the National Accountability (Amendment) Bill, 2019 was tabled before the National Assembly on Nov 7.

In the same session, the motion to amend the NAB Ordinance by way of the 2019 ordinance was adopted and the bill was passed by virtue of Section 2 of the 2019 ordinance inserting a new sub-section (e) in Section 10.

It stated that the “promulgation of the 2019 Ordinance by the President of Pakistan is unconstitutional and ultra vires of Article 89 of the Constitution for having been promulgated in a mala-fide manner, prior to a scheduled session of the House of Parliament”.

The Sindh government argued that pursuant to the historical allocation of legislative competence between the federation and the provinces — right from the Government of India Act, 1935 to the current constitutional dispensation under the 1973 Constitution — the legislative competence of the “prisons” and “prisoners” always remained within the exclusive domain of the provinces.

It argued that as such, the 2019 ordinance had been promulgated and passed into law without legislative competence.

It further argued that the amended federal anti-graft law was also incompatible with the provincial law currently in force in Sindh — the Sindh Prisons and Corrections Services Act, 2019 — which was recently enacted pursuant to the Sindh government’s exclusive power to legislate in respect of matters related to the prisons and prisoners, particularly for the establishment and management of prisons and the rights and welfare of prisoners.

The amended NAB Ordinance directly conflicts with the provisions set out in Chapter VI of the Sindh Prisons Act, which specifically list the criteria and circumstances for the classification and accommodation of prisoners in the “Better Class (B-class)” and “Common Class (C-class)” in prisons, the Sindh government said.

It stated that the presidential ordinance and consequent amendment to the anti-graft law was beyond the constitutional remit of the federation, as the legislative competence on the subject rested within the legislative domain of the provinces under the Constitution.

It was stated that the 2019 ordinance was usurpation of and encroachment upon the provinces’ constitutionally marked legislative power and a violation of the mandate of Article 142(C) of the Constitution.

By introducing a solely penal and punitive provision into the NAB law, the federal government has differently altered the object for which the law was created, ie “the recovery of looted money”, the Sindh government said, adding that it also violated fundamental rights of undertrial suspects.

Published in Dawn, November 15th, 2019