Islamabad High Court (IHC) was urged to declare that National Accountability Ordinance (NAO) 1999 ceased to exist after the promulgation of the 18th Amendment and insertion of Article 270-AA in the Constitution; therefore, all convictions under it, including the conviction of former Prime Minister Nawaz Sharif and his family members, be declared illegal, unlawful and without jurisdiction and they be released.
It is further prayed that the proceedings of all cases under the National Accountability Bureau (NAB) law may also be stayed on the grounds that the Ordinance had expired and has no lawful effect since August 18, 2010. Since the NAB is continuing its functions without lawful authority, the court should pass an injunctive order debarring the NAB from continuing its activities.
Vice President Pakistan Muslim League-Nawaz (PML-N) Khyber Pakhtunkhwa chapter, Muhammad Fawad Monday filed a petition under the Article 199 (1)(B)(C) and 199(2) of the Constitution through Muhammad Saim Chaudhry. He made the federation through the Ministry of Law, NAB chairman and Adiala Jail superintendent as respondents.
The petitioner stated that General Pervez Musharraf (retd) by suspending the Constitution promulgated the Provisional Constitutional Order (PCO) 1999 No. 1, but the same day issued the Provincial Constitutional (Amendment) Order 9, 1999, declaring that an ordinance promulgated by the president and the governors shall not be subject to the limitation as prescribed in the Constitution.
He also stated when the 18th Amendment Act, 2010 came into existence it amended the Constitution comprehensively and introduced the Article 270-AA declaring that the Proclamation of Emergency of October 14, 1999 and PCO Order No.1 as having been made without lawful authority and of no legal effect.
The petitioner said that according to the preamble of the National Accountability Ordinance, 1999, it was promulgated by the president after suspension of the National Assembly and Senate through Proclamation of Emergency under the Provisional Constitution Order No.1 as well Order 9 of 1999. The Order No. 9 was promulgated only to amend the PCO Order No. 1 of 1999 by insertion 5(a)(1) in the PCO Order No. 1 to that effect that the limitation of 120 days prescribed under the Article 89 of the Constitution of Pakistan to any Ordinance is not mandatory, effective and lawfully binding provision.
After the promulgation of the 18th Amendment on April 20, 2010, the NAO 1999, which was made in pursuance of the PCO 1 of 1999 and Order 9 of 1999, lost the protection of the PCO Order No. 1 as amended by the Order 9 and by automatic operation of law came under limitation period of 120 days as provided under the Article 89 of the Constitution.
Therefore, after the promulgation of the 18th Amendment, the NAB law is dead from 18-08-2010 after the expiry of 120 days' period. He contended that in the Sindh High Court Bar Association case, the Supreme Court declared Proclamation of Emergency and PCO No. 1 of 2007 unconstitutional and void ab initio and validity purportedly conferred on all such Ordinances by means of the Article 270-AAA and by the judgment in Tikka Iqbal case also having been shorn, such Ordinance would cease to be permanent law with the result that the life of such ordinances would be limited to the period specified in the Articles 89 and 128 of the Constitution viz four months and three months respectively from the date of their promulgation.
The Para 187 of SHCBA case says: "It may be noted that such Ordinances were continued in force throughout under a wrong notion that they had become permanent laws. Thus, the fact remains that on the touchstone of the provisions of Article 89 and 128 read with the Article 264 of the Constitution and Section 6 of the General Clauses Act, 1897 only such rights, privileges, obligations or liabilities would lawfully be protected as were required."
The petitioner stated that the same principle of law has been reiterated in the Dr Mubashar Hassan case. The counsel contended that in view of the judgments, all the sentences passed by accountability courts and reference filed by the NAB authorities are without lawful authority coram non judice and non est and even the judgment passed by the Accountability Court No.1 Islamabad on 06-07-2018 against former Prime Minister Nawaz Sharif and his daughter and son-in-law is based on a law which no longer exists hence cannot be sustained in the eye of law.
The continued detention of Mian Muhammad Nawaz Sharif and his other family members in circumstances where the NAB law has lapsed after the 18th Amendments and references under it are coram non judice and without force of law.
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