NAB chief’s appointment — the legal angle

Our courts are on a worrisome path of taking over powers from the executive and the right of parliament to legislate.

The government is once again embroiled in a controversy over the appointment of the National Accountability Bureau’s (NAB) chairman. Both the opposition and the Supreme Court want to have a say in the matter. However, a closer analysis of the law reveals that the positions adopted by the opposition and the honourable court are perhaps misconceived.

The opposition’s insistence on demanding the appointment of the NAB chairman with consensus is not sustainable in light of the existing relevant provision: Section 6(b)(i) of the NAB Ordinance (NAO). This stipulates that the NAB chairman is to be appointed by the president “in consultation with the Leader of the House and the Leader of the Opposition in the National Assembly”. Of course, the word “consultation” cannot be interpreted to mean appointment with consensus. The opposition’s reported objection that Justice (retd) Deedar Hussain Shah has been a member of the Sindh Assembly on a PPP ticket does not carry weight, as it is neither a legal disqualification nor a moral hurdle.

In the NRO judgment’s follow-up proceedings this week, the Chief Justice of Pakistan said that the appointment of the NAB chairman could not be made without consultation with him. The honourable chief justice’s opinion is based on what he wrote in the NRO judgment, while making a reference to an earlier judgment by the Supreme Court in Asfandyar Wali’s case of 2001.

In the NRO case (in paragraph 180) the court had said: “It is, therefore, suggested that the Federal Government may make fresh appointments against the said posts (including chairman NAB) of persons possessing high degree of competence and impeccable integrity in terms of Section 6 of the NAO, 1999 as also in terms of the observations of this Court made in Khan Asfandyar Wali’s case (PLD 2001 SC 607).”

It may be recalled that Section 6(b)(i) of the NAB Ordinance, in its earlier form in 2001, prescribed that the NAB chairman “shall hold office during the pleasure of the President”. In Asfandyar Wali’s case, the apex court found that the requirement that the chairman shall hold office “during the pleasure of the President” was ultra vires, “being repugnant to the concept of independence of an institution”.

The court did not stop at that — it held that the said provision should be amended as follows: “The Chairman NAB shall be appointed by the President in consultation with the Chief Justice of Pakistan” (paragraph 286).  Thus, the apex court lent itself the power to legislate, which it had earlier granted to General Pervez Musharraf and which the Constitution grants only to the federal and provincial legislatures.

The court’s direction was heeded and an amendment was introduced in August, 2001, which required the president to consult the chief justice in the matter. But General Musharraf, through another presidential ordinance in 2002, substituted the words “the Chief Justice of Pakistan” with “the Leader of the House and the Leader of the Opposition in the National Assembly”. The provision was thus changed to read as it exists today. No notice was taken of the 2002 amendment by the apex court. The amendment later stood protected under the validation clause (270AA) of the Constitution. For eight years the chief justice was not consulted when two NAB chairmen were appointed.

What was said in the NRO judgment was a mere suggestion by the Supreme Court and not a binding order as the wording reproduced above shows. The suggestion did not take into consideration Section 6(i)(b), nor was there any other sound legal basis as the matter was never really discussed in the court. It was perhaps because of this realisation that the apex Court stopped short of making a binding order in this respect.

Our courts are on a worrisome path of taking over powers from the executive and, even more seriously, the right of parliament to legislate. Will the courts, full of missionary zeal to correct everything, pause and ponder if this indeed is the way forward?

Published in The Express Tribune, October 16^th, 2010.