People & Society

Pros and cons of a law aimed at evicting NAB from Sindh

Published 04 Oct, 2017 04:03am


The Sindh Assembly in session in December 2014 | White Star
The Sindh Assembly in session in December 2014 | White Star

Sindh law minister Ziaul Hassan Lanjar was trying to do something unusual earlier this year. He was overseeing the drafting of a piece of legislation to repeal the National Accountability Ordinance, the same federal law under which an inquiry was being conducted against him.

He was not the only one from the Pakistan Peoples Party (PPP) – which rules in Sindh – facing a NAB probe at the time. Dr Abdul Sattar Rajper and Haji Abdul Rauf Khoso (both members of Sindh Assembly), former adviser to the chief minister Asghar Ali Junejo, former member of the Sindh Assembly Nasrullah Baloch and Ghulam Qadir Palijo, the father of PPP Senator Sassui Palijo, all had NAB inquiries ordered against them for various corruption charges. Sindh’s 17 top-ranked bureaucrats were also being investigated under the ordinance around that time.

But sources in the Sindh government point out that the provincial cabinet had decided to repeal the ordinance in February this year, a month or so before NAB formally started looking into complaints of corruption against Lanjar and others.

The Sindh Assembly eventually repealed the ordinance on July 3, providing for the setting up of a provincial accountability agency to replace Sindh’s Anti-Corruption Establishment and requiring NAB to hand over the record of all its ongoing and pending inquiries and court cases to the new agency being established.

The move faced severe criticism from opposition parties and elicited allegations from the media that it was aimed at saving PPP’s members and associates from investigation, arrest and prosecution by NAB. When the passed bill was sent to Sindh Governor Muhammad Zubair for his constitutionally-required assent, he also refused to sign it into law and sent it back to the provincial government, raising a number of legal objections. The Sindh cabinet subsequently discussed his objections and passed a revised piece of legislation on July 27. When the governor received this new bill, he refused to endorse it once again.

Opposition parties in the Sindh Assembly – Muttahida Qaumi Movement-Pakistan, Pakistan Tehreek-e-Insaf and Pakistan Muslim League-Functional – challenged the legislation at the Sindh High Court in the meanwhile. They argued that the legislation was in conflict with the Constitution’s provisions that give federal laws precedence over provincial ones. A law passed by the federal parliament will prevail upon a law passed by a provincial assembly in case there is a conflict between the two laws, they said, citing constitutional provisions.

The court initially formed a two-judge panel, headed by Chief Justice Ahmed Ali M Shaikh, to hear the case. On August 16, the panel allowed NAB to continue its inquiries and investigations in the province until a final decision in the case is made. About ten days later, Shaikh formed a larger bench to carry out hearings on the merits of challenges to the legislation.

Pending a decision in the case, expert opinion remains divided on the provincial government’s power to pass the controversial legislation.

Shaukat Hayat, a Karachi-based lawyer, agrees with the petitioners. He says the Constitution does not allow a province to repeal a federal law. Repealing federal laws is like infringing upon the rights of the federal legislature, he argues.

A retired Sindh High Court judge, who does not want to be mentioned by name, disagrees. After the 18th amendment in the Constitution, he says, the situation is different from what it used to be. “The provinces now can make their own criminal laws, formulate criminal procedure codes and devise laws of evidence,” he says. “The federal government, however, cannot [do all this] because these subjects are not included in the federal legislative list.”

In his opinion, provinces also have the power to amend or repeal any federal law if it is not included in the federal legislative list but affects the constitutional and legislative powers of the provinces. “Sindh Assembly has exercised this power because making laws on checking corruption is now a provincial subject under the 18th amendment,” he says.

Muhammad Azhar Siddique, a Supreme Court lawyer known for his public interest litigation through the Judicial Activism Panel in Lahore, offers an explanation that partly endorses both points of view. “The federal government cannot legislate on the subjects which are no longer on the federal legislative list but the federal laws promulgated before the 18th amendment would remain intact and cannot be repealed by the province,” he says.

He also believes Sindh did not need to repeal the federal law in order to form its own anti-corruption agency. The province should have tried to avoid creating a controversy by not repealing the federal law, he says, and criticises Sindh’s demand that NAB hand over all its record to the proposed anti-graft entity. The provincial government should have, instead, initiated inquiries into major corruption cases and showed its performance over the next few months, he says. This would automatically bring NAB’s activities within the province’s jurisdiction to an end, he adds.

Sindh Chief Minister Syed Murad Ali Shah believes his government has done nothing new in repealing the ordinance. “[We] have already amended two federal laws, Sindh Local Government Ordinance and the police order.” He says in a phone conversation that the provincial government is on solid legal grounds in overturning the NAB law. “We will prove that the provincial government is more competent in taking effective and genuine measures against corruption.”

Sources in the Sindh government as well as some PPP members argue the legislation was passed because NAB has a history of being deployed to harass the party’s leaders and legislators.

They describe how the bureau started investigating allegations of corruption against seven PPP leaders – Mir Munawar Ali Talpur, a member of the National Assembly from Mirpurkhas, former provincial ministers Syed Ali Mardan Shah, Ali Nawaz Shah, Giyan Chand, Pir Mazharul Haq and Muhammad Ali Malkani and incumbent minister Suhail Anwar Siyal – but could not find any incriminating evidence against them. All the cases against them were dropped, the sources say, but the damage had already been done. Since NAB’s allegations against elected representatives always create a greater ripple in the media than the news of inquiries against them being dropped, their image as being corrupt sustains in the public imagination, complain insiders.

“We would not have any objections against NAB if it were an independent body,” says Nisar Ahmed Khuhro, PPP’s Sindh president. “It targets people and in the end finds nothing against them which means it is used for political victimisation.”

Murad Ali Shah endorses his views. “NAB has been doing a witch-hunt in Sindh. It is victimising legislators, bureaucracy and the people of the province.” It has lodged cases against members of the provincial assembly who have no financial powers, he says. Even the apex court has expressed reservations over its working and performance, he adds.

The chief minister also claims the provincial bureaucracy felt paralysed due to the fear of harassment and interference in its working by NAB. “They almost stopped working, drastically bringing down the utilisation of development funds.”

Rizwan Soomro, NAB’s spokesperson in Karachi, refutes the allegations against his department. “[We] always maintain transparency and impartiality in our working,” he says and adds that the bureau does not initiate a case against anyone on political grounds. “All NAB cases are initiated on the basis of complaints.” He cites data on NAB’s performance to show how conviction rate in the references it has filed is far higher than the single-digit conviction rate in other cases. “Since its inception in 1999, NAB’s Karachi office has conducted 1,600 inquiries out of which 900 reached investigation stage. [On the basis of these investigations, we have] filed 475 references, resulting in the arrest of 800 people. The conviction rate so far in these references has been 35 per cent,” he says.

The only way for the provincial government to remove the controversy over the legislation it has passed is to not just match but surpass this performance.

This was originally published in the Herald's September 2017 issue under the title "Taking on the centre". To read more subscribe to the Herald in print.

The writer is a staffer at the Herald.