Scrutinising the NAB controversy

Protests against new NAB chairman may prove unfounded. He may be good at his job but there are valid concerns that he will feel honour-bound to protect those that put him in power.

What's the hubbub? That’s the question that comes to mind when I get to thinking about the National Accountability Bureau (NAB). Why  the hue and cry over the appointment of the new Chairman. But let’s not get ahead of ourselves. I must confess that when tasked with writing this piece, I did not know where to begin, and frankly, could not make heads or tails of the whole NAB chairman selection controversy.

What started the trouble

I got down to some reading and will share what I have made of it so far.

- The government, namely the President, appointed the NAB chairman under pressure from the judiciary, because the deadline was about to lapse.

- This in turn upset the opposition party, who claim that they had no say in the decision making process.

- The lawyers jumped on the opposition bandwagon because they were feeling left out, thus dragging in the High Courts of Lahore and Sindh respectively.

What the NAB is NAB? NAB is the brainchild of former President Pervez Musharraf and came into being by virtue of the National Accountability Ordinance (NABO) 1999, with the aim of rooting out corruption from within the establishment. The ‘main man’ of the bureau is the chairman, whose responsibilities include not only heading the Bureau, but also heading its investigation wing, followed by the prosecutor general, whose role is obvious by his designation.

Let’s take a look at the objections raised and see if they are valid or even worth being entertained.

A new man in power ( so what's the problem?)

The post of the chairman had been vacant for about three months and the second deadline issued by the Supreme Court was about to lapse, when Justice (retd) Deedar Hussain Shah was appointed. That’s when the the proverbial fan got hit by so.

The opposition claims it had no hand in it and that Mr. Hussain’s party affiliations, along with the fact that he has been counsel for the President in his allegedly sordid past, may “influence” his ability to discharge his duties as the head of investigation of the country’s anti-corruption body. They feel that he may be honour-bound to protect those that put him in office. Also of concern is the stringent stance taken by the Supreme Court against the NRO and the possibility that the appointment is merely an insurance plan for those in power to ensure that the watchdog doesn’t bite them in the proverbial gluteus.

These concerns have been echoed by the LHC and SHC in their opposition of the appointment as well. Bear in mind that all these concerns are valid and there are strings that come attached to the appointment of every official to such a key post. However, one must look at the situation objectively in the light of the law and the constitution.

What does the law say?

The NABO 1999 states unequivocally at Article 6(b)(i) that “the Chairman NAB is to be appointed by the President” and continues in Article 6(b)(ii) that:

“the Chairman NAB shall be appointed on such terms and conditions and shall have the status and privileges as may be determined by the President”.

So by virtue of the NAB Ordinance in itself, there is no room for questions to be raised by either the opposition or any judicial body. This, coupled with the Eighteenth Constitutional Amendment, which serves as the basis for most writ petitions against the appointment, is restrictive of the role of the “Judicial Commission” to the appointment of Justices of the Supreme Court and High Courts.

Furthermore, the role of the CJ is diminished, as his consultation is to be sought only with respect to the appointment of a judge of the Accountability Court (ref. NABO Article 5(g)). And so it would seem that the petitions against the appointment are doomed to fail. One must bear in mind that regardless of how we feel, the law is the law, and to undermine it would be to undermine the rule of law in its entirety. This, need I remind anyone, was the basis of the whole “lawyers uprising” not too long ago.

Political loyalty may not be a good thing

If a law seems archaic or unjust, it is for the legislative body to overturn or amend it and until such time the hands of the courts are tied. However, those in the opposition should not lose heart. Those appointed to such positions of power have a tendency to “bite the hand that feeds them,” which ironically in this case, is the criterion for the job.

It has been seen time and again in this country that the worm always turns and that every Goliath has his David. For Bhutto it was Zia, Benazir had her Leghari, Nawaz had Musharraf and Musharraf in turn had Ifthikhar Muhammad Chaudry. Each was put into office by the then President or Prime Minister and eventually each caused their downfall. So who knows, it may yet prove to be that Justice (retd) Deedar Hussain Shah, now Chairman NAB, is the downfall of a government that can’t stop reiterating that it will complete its term come hell or high water.