ISLAMABAD: The 20-year-old recommendation of the Supreme Court in the Asfandyar Wali case regarding appointment of the National Accountability Bureau (NAB) chairman by the President in consultation with the Chief Justice of Pakistan (CJP) still holds the field, the Supreme Judicial Council (SJC) noted at its last meeting before adjourning the proceedings till September.
The SJC said the apex court had not receded from its 2001 directive in the 2013 Chaudhry Nisar Ali Khan case in which it stated that though its earlier recommendation (in the Asfandyar Wali case) entitles due respect, deference and consideration, a recommendation is a recommendation and not a law.
Currently, Section 6 of the National Accountability Ordinance (NAO) suggests the president will appoint NAB chairman in consultation with the leader of the house and the leader of the opposition in the National Assembly for a non-extendable period of four years.
In view of this scenario, the SJC at its July 12 meeting finally decided to postpone the issue for further consideration till September when Attorney General for Pakistan (AGP) will come up with a suitable solution after getting instructions from the government about the procedure of NAB chief’s appointment and removal.
NAB ordinance says president will appoint chairman in consultation with leader of the house and opposition leader in National Assembly
According to NAO Section 6, the NAB chairman cannot be removed except on the grounds of removal of a judge of the Supreme Court.
The condition for removal of a superior court judge under Article 209 of the Constitution has been mentioned as becoming incapable of properly performing the duties of his office by reason of physical or mental incapacity or has been guilty of misconduct. However, the specific forum, which is SJC, as referred in the laws governing the appointment and removal of the auditor general of Pakistan and the federal ombudsman has not been named in the case of NAB chairman.
The SJC, presided over by Chief Justice Gulzar Ahmed and also comprising Justice Mushir Alam, Justice Umar Ata Bandial, Sindh High Court Chief Justice Ahmad Ali Sheikh and Islamabad High Court Chief Justice Athar Minallah, had taken up two private complaints of Barrister Zafarullah Khan and Chaudhry Mohammad Saeed Zafar against NAB chairman Javed Iqbal.
Barrister Zafarullah Khan could not turn up at the meeting due to his illness, but the other complainant appeared before the council to argue in person.
While citing Article 209(s) of the Constitution and Section 6 of the NAO, Mr Zafar argued that the provisions by implication vested jurisdiction upon the SJC to try the complaint against the NAB chairman.
His complaint concerns the alleged personal meeting of the NAB chairman with suspect Tayyaba Gull in a private room during which the NAB chairman allegedly indulged in objectionable acts that fell squarely within the purview of misconduct.
The AGP, who appeared before the council on notice, referred to the 2001 Asfandyar Wali case in which it was held that Section 6(b)(i) of the NAO, which suggested that the NAB chairman would hold his office during the pleasure of the president was ultra vires and repugnant to the concept of the independence of the institution.
The judgement had also required suitable amendments to Section 6 of the NAO by recommending that the NAB chairman be appointed by the president in consultation with the CJP for a period of three years who would not be removed from the office except on the grounds of removal of a judge of the Supreme Court.
Likewise, the NAB chairman will be entitled to salary, allowances and privileges and other terms and conditions of service, as the president determines and these terms will not be varied during the term of his office. However, the NAB chairman by writing under his hand and addressed to the president could resign from office.
The SJC also noted that the same question had come up for consideration before the apex court in the 2011 Shahid Orakzai case. The Supreme Court had the importance of consulting CJP in the matter of NAB chairman’s appointment and that the recommendations and suggestions repeatedly made by the apex court in this regard through different judgements handed down from time to time be given effect to in all future appointments of the NAB chairman.
The judgement had also observed that the court entertained no manner of doubt that anybody interested in making an honest and good appointment to that office would feel shy of consulting the CJP.
Whereas in the case of 2013 Chaudhry Nisar Ali Khan, the Supreme Court observed that the suggestion or the recommendation of this court in the case of Asfandyar Wali though entitles due respect, deference and consideration, it does not travel beyond a suggestion or a recommendation and it does not by itself assume the status of a law. “By its nature and form a suggestion or a recommendation is simply what it is, nothing more or nothing less,” the judgement had held.
The SJC in its meeting while considering these judgments in detail decided that it was apparent that the consultation with the CJP was not necessary in the appointment of the NAB chairman, the suggestions in the Asfandyar Wali case seemed to be holding the ground. Also, in the case of Chaudhry Nisar Ali Khan, the SC had not receded from the suggestions, the council noted.
Published in Dawn, July 25th, 2021