ISLAMABAD: The Supreme Court on Thursday declared appointment of Chairman National Accountability Bureau (NAB) former justice Deedar Hussain Shah illegal, ultra vires to the Constitution and ordered him to cease his office forthwith.
Justice Javed Iqbal heading a three-Judge bench seized with the issue in his short verbal order said "the appointment of Chairman NAB is illegal, ultra vires to the Constitution and he is ordered to cease the office forthwith."
He announced that reasons for their ruling would be recorded later. The other members of the bench were Justice Raja Fayyaz Ahmed and Justice Asif Saeed Khosa that resumed hearing pleas of Leader of the Opposition in National Assembly Chaudhry Nisar Ali Khan and Shahid Orakzai.
The bench announced its short order after conclusion of arguments by the counsels for both parties.
Earlier Abdul Hafeez Pirzada, the counsel for Federation, resumed his arguments and said that appointment of Chairman NAB did not infringe upon the fundamental rights of any individual and the issue could not be treated under fundamental rights.
He said the issue of right to life could not be extended to an appointment of this nature as prayed by the petitioners.
Opposing grounds of petitioners, he said these pleas were not maintainable as these were premature based upon "certain misconceptions, perceptions and hypothetical grounds."
He maintained that the Court could not go into the academic questions as already held in Malik Asad's case.
The office of Chairman was not the one to which legitimate expectations of other aspirants were concerned with as observed by this Court in contract employees' case, he said, adding, the concerned retired people were employed against this important post.
Justice Asif Saeed Khan Khosa observed that rights of thousands of those who had been involved in NAB cases were attached with the issue.
Pirzada said that petitioners' objection to partiality of the chairman did not hold ground as a number of able judges like retired Javed Iqbal, son of Allama Muhammad Iqbal, took part in politics.
Justice Khosa questioned when the first notification on his appointment was withdrawn then how could they adjust his service tenure period of four months!
The counsel replied that if the Court held that first notification was illegal and the second held its ground then they would leave the issue of service tenure for it to decide.
He said "It is upto the Court to hold whether tenure of Chairman NAB will be of four years or three years and eight months."
He contended that the second notification of February 9th was issued keeping in view of legal requirements and after incorporating the Prime Minister's advice under Section 6 of the NAB Ordinance.
To bench's query, he said the first notification was cancelled, revoked and declared void without disturbing continuity of the service.
He said the second notification was issued to remove the defect.
He said the appointment of prosecutor general NAB which was annulled by the apex Court last year in Haris Steel Mills case had no bearing with the instant case.
He said the Court had to first find the legality of the first notification and then proceed.
Pirzada maintained that section 6 of the NAB Ordinance and Article 48 were not workable and required amendment.
Justice Khosa observed that if they left the issue open, in future people would come to challenge it again.
He contended that they were passing through difficult times and the Court could not act in void.
"We are already bogged down like the Indian Supreme Court which faced thousand of public litigations till Bhaghwati's case in which they decided what such cases had to be taken up," he added.
Referring to 7th Wage Board Award, he said the Chief Justice in 2004 had refused to accept it under Article 184 concerning fundamental rights and said that it was a matter between the journalists and the owners though rights of thousands of journalists were involved in it.
He said the leader of the Opposition never said that the consultation was improper.
How the parties could change their viewpoint over the issue! he questioned.
The bench also asked Attorney General for Pakistan Molvi Anwarul Haq to take up the issue of appointment of prosecutor general NAB with the federation.
They observed that in absence of prosecutor general how prosecution issue was being dealt with!
Muhammad Akram Sheikh, counsel for Chaudhry Nisar Ahmed Khan, said that respondent was only assuming the appointment as valid by removing a single defect without looking into three other defects which had crept in it.
He prayed the Court to lay down future guidelines for such appointments.
Chaudhry Nisar Ali Khan through his plea had challenged the appointment of former Justice Deedar by stating that the parameters of section 6 of the National Accountability Ordinance (NAO) relating to meaningful consultation between leaders of the House and Opposition was not adhered.
He maintained that the chairman had long political affiliations with the ruling party and twice served as provincial member of the Sindh Assembly.
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