It is the season for appointments and disappointments. Prime Minister Imran Khan has to make three most critical appointments during the remainder of his term. All three can have a bearing on his future.
The first of these three decisions is upon him. What will he do?
NAB chairman retired Justice Javed Iqbal’s four-year tenure ends in a fortnight. More is riding on his office than just one person’s career.
As the federal capital swirls with chatter — intelligent and otherwise — about whether the current chairman gets to stay in office or a new occupant appears on the scene, here are ten key points mapping the politics of this appointment.
Two problems have arisen already that will complicate the matter from here on. The NAB law states clearly that the four-year term of the chairman is non-extendable. This means the current chairman cannot be given an extension. The law also requires that the prime minister hold consultation with the leader of the opposition in the appointment of the chairman. The PTI information minister has stated on record that the prime minister will not hold this required consultation because the leader of the opposition is a NAB accused and therefore there is a conflict of interest in him being consulted for the appointment.
If the present NAB law does not allow for giving an extension to the incumbent chairman (in case the government is interested in having him stay), and if the law also gives no option to the PM to avoid consultation with the leader of the opposition, then the only way the government can have its way is to change the NAB law. It has the numbers to make the required amendment and legally nothing stops it from opting for this route.
According to Red Zone insiders, there is presently a debate taking place in PTI’s inner sanctum about the fate of retired Justice Iqbal. The debate revolves around a central question: would it be better for PTI’s electoral future if he continues in office, or should it risk bringing in a new person? The debate is premised on the consensus that accountability will be one of the central themes — if not the theme — for the general elections campaign. NAB, and its chairman, will have to play a critical role to cement the theme in the mind of the electorate.
There are complexities, however. If the government amends the law and does away with the requirement of the consultation with the leader of the opposition, two questions will arise: (a) should the PM then consult with some other office-holder in order to retain the spirit of consultation and consensus for the appointment? Or (b) should the consultation requirement be done away with completely and the PM acquires the power to appoint the chairman of NAB in his own discretion?
The problem with option (a) is that it is difficult to decide who else could be consulted in such an arrangement. The problem with option (b) is that this will adversely impact on the credibility of NAB given that the appointment of its chairman would be solely in the hands of the government. Plus, it is almost guaranteed to be challenged in the courts. That is a risk the government may think twice about taking.
There is yet another problem: time. The government has about two weeks before the current chairman retires. In these two weeks it can theoretically exercise the following options: (a) follow the present law, consult with the leader of the opposition, agree on a name and appoint the new chairman (negligible chance of this option’s success); (b) amend the law through a joint session and either reappoint the present chairman for another four-year term, or give him an extension; (c) appoint a new chairman in its discretion. Whichever option the government chooses, it has only this two-week window to play with. There is a reason for this.
If the current chairman retires on the due date and a new appointment has not been made, NAB as an organisation becomes dysfunctional in the sense that without a chairman it cannot file any new references or order investigations or even detentions, etc. Administratively, NAB will continue to run. The enquiries and investigations under way will proceed as usual, but no fresh orders can be issued in the chairman’s absence. Given its priority for going after its opponents, the government can ill-afford the NAB to become defanged because a new appointment of the chairman has not been made.
Opposition smells an opportunity. Sources inside this camp argue the following: (i) if the government acts on the law and consults the leader of the opposition, there is approximately zero chance of a consensus. With no consensus, the process will drag on and the incumbent chairman will retire and go home, while the NAB will become defanged in many ways. This suits the opposition. (ii) If the government amends the law, opposition will head straight to the courts and will exploit the ‘NAB-Niazi’ nexus theme to the hilt.
Opposition sources say if the government brings an amendment whose direct beneficiary will be the current NAB chairman, it would make the opposition’s legal case stronger as it will then argue that a person-specific law kills the purpose of the law itself. These sources believe superior judiciary has in the past made it abundantly clear that NAB appointments should follow the spirit of the process laid down. When the PPP government had appointed former naval chief Admiral Faseeh Bokhari as NAB chairman, the-then leader of the opposition Chaudhry Nisar Ali Khan had gone to the Supreme Court and argued that he had not been properly consulted in the appointment. The court had not only agreed with him, it had overturned the appointment and written in the judgement that the consultation required per law should be ‘meaningful’ also.
There is one more option that the government is deliberating upon, according to Red Zone insiders. This entails amending the NAB law so that the current chairman can be given an extension till the fresh appointment is made. If the government does not change the existing requirement of consulting the leader of the opposition (for fear that the court may knock the amendment down), it can retain the current chairman for as long as it wants while dragging the ‘consultation’ requirement endlessly.
The final government decision will pivot around two factors: how will the judiciary react? How will the establishment react?
It’s the season for appointments and disappointments.
Published in Dawn, September 23rd, 2021