ISLAMABAD: The government pulled the proverbial rabbit out of the hat when it told the Supreme Court on Thursday President Asif Ali Zardari had appointed Justice (retd) Syed Deedar Hussain Shah as chairman of the National Accountability Bureau on Wednesday night, a post which the retired judge has been holding for some time.
“On the basis of a slight modification, Prime Minister Yousuf Raza Gilani advised the president under Article 48 of the Constitution to appoint Justice (retd) Deedar and the president has appointed him as the chairman at 2:30 am in the morning,” government lawyer Abdul Hafeez Pirzada told a bench hearing two petitions challenging the appointment.
The bench comprises justices Javed Iqbal, Tassaduq Hussain Jillani, Raja Fayyaz Ahmed and Asif Saeed Khosa.
In the first petition, leader of the opposition in the National Assembly Chaudhry Nisar Ali Khan has challenged the appointment saying it violates the spirit of Section 6 of the National Accountability Ordinance which makes the consultation of the opposition leader mandatory.
In the second petition, Shahid Orakzai has argued that the appointment was made by the president without fulfilling the constitutional requirement of seeking the prime minister’s advice under Article 48 of the Constitution.
The statement by the counsel startled the judges; they appeared confused about how to interpret this information – was it a re-appointment, a fresh appointment, a mere simple appointment or continuation of service?
The counsel said: “It was for the court to decide.” He explained that a decision was taken at the highest level to terminate the earlier October 9, 2010, notification of Justice (retd) Deedar’s appointment and then re-appoint him on the prime minister’s advice. According to the counsel, the notification was with the Government Printing Press for publication.
However, this argument was immediately challenged by one of the petitioners. Mr Orakzai pointed out that the chairman could be appointed once for a four-year term that could not be disrupted in the middle or removed once and then brought back. “The four-year appointment of the NAB chairman cannot be extended,” he said.
Because he said this before the government counsel had finished his arguments, the judges did not respond to him. However, their subsequent questions revealed that they too were not convinced by the government’s point of view.
For instance, Justice Asif Saeed Khosa asked whether the new appointment was an acknowledgment by the president as well as the prime minister that the earlier appointment was illegal.
The president has appointed a person on a post which is already taken and no vacancy existed, Justice Khosa said, adding that there was nothing on record to show that the earlier notification had been withdrawn.
The counsel tried to answer the questions by explaining that the new notification met the requirement of Article 48 and Section 6 (b i) of the National Accountability Ordinance, 1999. He also said that the earlier notification was being cancelled.
However, when the court insisted on seeing the notification re-appointing Justice (retd) Deedar, the counsel explained that all he could offer was the summary regarding the appointment of the incumbent, which was with Attorney General Maulvi Anwarul Haq.
The AG then submitted a copy of the summary which was made part of the record of the court after Justice Javed read it aloud.
“I had made a commitment before the court which has been fulfilled and what was humanly possible was done last night,” the counsel said.
He said many questions of the court were of academic nature, adding that the court should not be hyper-technical. He reiterated that the defects in the earlier appointment had been addressed. But the court was not entirely convinced and Justice Javed Iqbal asked the counsel to submit the notification before the court at the next hearing. He added that once the bench saw the notification, it could decide whether or not to continue with the hearing.
The matter will be taken up on Feb 28.
Source: Dawn
Date:2/11/2011
