Islamabad: The Supreme Court on Tuesday directed counsel for Federation to assist it on Wednesday over the contents of a summary moved on October 8 last year about appointment of justice retired Syed Deedar Hussain Shah as Chairman National Accountability Bureau.
A four-Judge bench comprising Justice Javed Iqbal, Justice Tassaduq Hussain Jillani, Justice Raja Fayyaz Ahmed and Justice Asif Saeed Khan Khosa also drew counsel’s attention towards October 10th statement of the Prime Minister in which he was quoted as saying that he had nothing to do with the appointment as it was President’s discretion to make such appointments.
Abdul Hafeez Pirzada, counsel for Federation, submitted a 10-page summary of October 8 and said that it was prepared by the Ministry of Law and put up by the Prime Minister Secretariat for consideration of justice retired Deedar’s appointment to the post.
He said according to contents of the summary, the Prime Minister had talked to the Leader of Opposition over the issue.
He said it was very interesting document which also discussed all the objections raised by the petitioners.
To bench’s query, he said that Section 6 of the National Accountability Ordinance regarding appointment of chairman, was sub-constitutional provision which did not give discretionary powers to President and he had to act on the Prime Minister’s advice.
He further elaborated that Section 6 either had to become a reading down to Article 48 of the Constitution (which makes consultation process mandatory) or be declared as ultra vires.
Justice Asif Saeed Khan Khosa observed that it would be a serious issue if the Prime Minister had negated his stance over the issue as claimed by petitioners.
Pirzada replied that there were so many things appearing in press. Yesterday, press quoted Justice Khalil ur Rehman Ramday as saying that the language of a joint venture over Reko Diq case was shameful and today he was saying that he never said so.
Justice Javed Iqbal said that if there was a summary with consent of Prime Minister, then the debate would end.
Justice Asif Saeed Khan Khosa remarked that both offices of the Prime Minister and the President were respected ones and they did not want to say that any of them had erred.
Justice Tassaduq Hussain Jillani observed an expression in the summary was given that the Prime Minister had not given his advice rather it was sent for his consideration.
The counsel assured the bench that he would assist it after going through the whole record.
Earlier, the bench resumed hearing of two identical pleas of Chaudhry Nisar Ali Khan Opposition leader in the National Assembly and Shahid Orakzai, a freelance journalist, against appointment of chairman NAB by saying that relevant provisions of NAO were not met.
Muhammad Akram Sheikh, counsel for Ch. Nisar Ali Khan, contended that chairman NAB’s appointment was made without consultation with the Leader of the House and Leader of the Opposition.
Giving reasons, he said on 22 September 2010, the petitioner was intimated on telephone by the Prime Minister, the name of Justice (Retd.) Mukhtar Ahmad Junejo, for appointment as Chairman NAB but he had serious reservations which he promptly communicated in writing.
In the same letter, he also suggested that the Leader of the House and the Leader of the Opposition should mutually draw up a list of proposed names and then be forwarded to the President.
He said that the consultation for appointment of Chairman NAB should be meaningful, purposive, participatory and consensus orientated.
On September 23, 2010, the name of Justice (Retd.) Deedar Hussain Shah was similarly communicated to the petitioner without any reference to the letter whereby the previous proposal was rejected by him.
Akram contended that appointment was in total violation of section 6(b)(i) of the National Accountability Bureau Ordinance, 1999.
He also produced newspapers clippings about the Prime Minister’s stance over the issue.
Shahid Orakzai said that since passage of 18th Amendment new rules were framed and it was now binding to consult leader of the opposition over such appointments as laid down for appointment of Chief Election Commissioner.
Justice Javed Iqbal remarked that the word consultation was used in NAO and advice in the Constitution and there was difference between two.
Justice Jillani told him that there were two kind of things first in which the President enjoyed discretion and in the second, he was bound under the Prime Minister’s advice.
Orakzai said that Article 63 (k) was also applicable to retired judges of the superior courts as well under which they could not be appointed on such posts.
Justice Jillani told him that they had drawn lines between services of Pakistan and services of Judges rules.
To his point Justice Javed told him that when Deedar Hussain Shah served as a judge independently despite his earlier political affiliations, then what was wronged in his performing duties as chairman NAB.
Justice Asif Saeed Khan Khosa observed that sometimes, there were public sentiments and they wanted undisputed personalities like some retired judges to be appointed over such posts.
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