The ruling on two constitutional petitions, one of them by Leader of the Opposition in National Assembly Chaudhry Nisar Ali Khan, is being interpreted here as a blow to the government which had made some last-minute moves apparently to remove some perceived gaps in the appointment.

It came only six days after the apex court had overturned a parliamentary committee decision rejecting the grant of extension to six additional judges of the Lahore and Sindh High Courts recommended by the judicial commission.

Justice (retd) Deedar Shah was appointed NAB chief on Oct 8 last year after his predecessor Nawid Ahsan was removed under a Dec 16, 2009, Supreme Court ruling that held the controversial National Reconciliation Ordinance (NRO) as unconstitutional, ordered the government to revive all cases withdrawn under the ordinance and expressed displeasure over the perceived lack of proper and honest assistance and suggested the appointment of a new chairman.

“For reasons to be recorded separately, these petitions are accepted and the appointment of Justice (retd) Syed Deedar Hussain Shah as chairman, National Accountability Bureau (NAB), is hereby declared as illegal and ultra vires (of the Constitution) and he shall cease to hold the said office forthwith,” said the order of the bench comprising justices Javed Iqbal, Raja Fayyaz Ahmed and Asif Saeed Khan Khosa.

Chaudhry Nisar had challenged the appointment on the ground that Prime Minister Yousuf Raza Gilani had not met the constitutional requirement of holding consultations with him. The government said the consultation had been done and the appointment was made after the opposition leader had rejected an earlier nominee.

The second petitioner, Shahid Orakzai, argued that the appointment had been made by the president without meeting the constitutional requirement of a prime ministerial advice — an apparent lacuna the government appeared to have tried to remove when its senior counsel, Abdul Hafeez Pirzada, informed the court on Feb 10 of a modified notification issued the previous day announcing reappointment of Justice (retd) Shah by the president on the advice of the prime minister.

Advocate Mohammad Akram Sheikh, representing Chaudhry Nisar, argued that the government was assuming the appointment as valid by removing a single defect without looking into other alleged defects which he said had crept into it. He also prayed to the court to lay down guidelines for such appointments.

The counsel alleged that Justice (retd) Shah was known to have been associated with the PPP for a long time and he actively participated in party politics, twice serving as a member of the Sindh Assembly. On the other hand, Mr Pirzada argued that the appointment did not infringe upon the fundamental rights of any individual and, therefore, the case should not be treated under fundamental rights. The issue regarding the right to life could not be extended to an appointment of this nature which, he pleaded, also did not deny the legitimate expectations of other aspirants.

During the proceedings, Justice Asif Khosa observed that the issue related to rights of thousands of people concerned with NAB cases and questioned how the government could adjust the four months of service of Justice (retd) Shah after withdrawing the first notification about his appointment.

The government counsel replied that if the court held the first notification as illegal, the second would hold ground.