‘NAO exists despite passage of 18th amendment’

LHC full bench dismisses petitions through a short order


Rana Yasif August 31, 2018
LHC full bench dismisses petitions through a short order. Lahore High Court. PHOTO: EXPRESS

LAHORE: Dismissing petitions challenging legitimacy of the National Accountability Ordinance (NAO) 1999, the Lahore High Court (LHC) has observed that despite promulgation of the 18th Constitutional Amendment the NAO still exists.

The LHC full bench, headed by Justice Shahid Waheed and comprising Justice Atir Mahmood and Justice Shahid Jamil Khan, issued this order on Friday on petitions that had direct bearing with the July 6 conviction of former premier Nawaz Sharif and his family members under the NAO.

One of petitions filed by senior lawyer A K Dogar said the impugned ordinance was a creation under Provisional Constitutional Order (PCO) promulgated by former military ruler Pervez Musharraf. He said the PCO had been amended three times; however, the 18th amendment had rendered 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Supreme Court in its 2009 judgment also declared the PCO of Musharraf void ab initio meaning thereby that the NAO stood repealed since 2000.

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The other petitions also argued that the impugned ordinance had been promulgated by military dictator 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.

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 added.

After hearing the concluding arguments from both sides, the bench rose and assembled after a few minutes only to announce the short order which said the NAO was intact despite the 18th Amendment.

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Earlier, the National Accountability Bureau (NAB) Additional Prosecutor General Jahanzeb Bharwana argued that the NAO had been given the status of Act through Legal Framework Order 2002 by insertion of Article 270-AA in the Constitution.

“Subsequently the ordinance was approved as an Act of Parliament through 17th Amendment Act 2003. 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,” he added.

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.

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