ISLAMABAD - The Islamabad High Court (IHC) Tuesday turned down a petition seeking directions to the government to hold consultations with the Chief Justice of Pakistan (CJP) regarding the appointment of the Chairman National Accountability Bureau (NAB).
A single bench of IHC comprising Chief Justice of IHC Justice Athar Minallah dismissed the petition by Ch Muhammad Fahad Shabbir terming it as non-maintainable.
The bench ruled, “The petition is without merit and, therefore, accordingly dismissed in limine.”
The IHC Chief Justice noted in written verdict, “The learned counsel for the petitioner, despite his able assistance, could not persuade the Court that a suggestion or recommendation made by the august Supreme Court is binding on the Majlis-eShoora (Parliament).
He added that this question has been unequivocally clarified by the august Supreme Court in the judgment titled “Ch. Nisar Ali Khan vs. Federation of Pakistan” and the judgment was rendered by a larger bench consisting of five judges.
The judge said the relevant portion is reproduced as follows, “A lot of emphasis has been laid by Muhammad Akram Sheikh, Senior Advocate Supreme Court appearing for the petitioner upon the Chief Justice of Pakistan being a consultee in the matter of appointment of the Chairman, NAB and suggestions and recommendation having been made by this Court in that regard in various judgments including the judgment delivered in the case of Shahid Orakazi and another v. Pakistan through Secretary Law, Ministry of Law, Islamabad and another PLD 2011 SC 365.”
It further said, “As against that the learned counsel for respondent No. 3 as well as the learned Attorney General for Pakistan have argued with vehemence that the Chief Justice of Pakistan does not figure in the provisions of section 6(b)(i) of the National Accountability Ordinance, 1999 as a consultee and that this Court had no jurisdiction to add a consultee to the process of appointment of a Chairman, National Accountability Bureau where the relevant law did not make him so. We have found all such submissions to be missing the point.
It goes without saying that a suggestion or a recommendation made by this Court in a judgment, though entitled to due respect, deference and consideration, does not travel beyond a suggestion or a recommendation and it does not by itself assume the status of law. By its nature and form a suggestion or a recommendation is simply what it is, nothing more and nothing less. In this view of the matter this aspect of the case may not detain us any further.”
The IHC bench maintained that the august Supreme Court has affirmed the validity of appointment of Chairman of the Bureau in consultation with the leaders of the House and Opposition in the National Assembly.
However, while reiterating the observations made in the case reported as “Shahid Orakazi and another vs. Pakistan through secretary Law, Ministry of Law, Islamabad, the august Supreme Court has observed and held as follows:- “It, thus, stands settled that a constitutionally or statutorily required “consultation” has to be effective, meaningful, purposive, consensus oriented, leaving no room for complaint of arbitrariness or unfair play and in order to establish that a consultation was meaningful and purposive it should manifestly be shown that a serious, sincere and genuine effort was made towards evolving a consensus.
It also stands equally settled that the first priority in any consultation has to be directed towards evolving a consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidate and that consultation practically amounts to an effort made towards meeting of minds.”
In his petition, the petitioner sought a direction regarding implementation of the recommendations/observations made by the august Supreme Court in the case titled “Khan Asfandyar Wali and others vs. Federation of Pakistan through Cabinet Division, Islamabad and others,” relating to appointment of the Chairman NAB. He adopted the stance that the august Supreme Court had suggested appointment of the Chairman by the President in consultation with the Chief Justice of Pakistan.
Justice Athar observed that the mode of appointment of the Chairman of the Bureau has been described under section 6 of the Ordinance of 1999 and the said provision has been amended by the Majlis-e-Shoora (Parliament) from time to time.
He added, “The existing manner of the appointment has been prescribed under clause b(i) of section 6 of the Ordinance of 1999. The statutory provision contemplates that the Chairman shall be appointed by the President “in consultation with the leaders of the House and the Opposition in the National Assembly.”
A single bench of IHC comprising Chief Justice of IHC Justice Athar Minallah dismissed the petition by Ch Muhammad Fahad Shabbir terming it as non-maintainable.
The bench ruled, “The petition is without merit and, therefore, accordingly dismissed in limine.”
The IHC Chief Justice noted in written verdict, “The learned counsel for the petitioner, despite his able assistance, could not persuade the Court that a suggestion or recommendation made by the august Supreme Court is binding on the Majlis-eShoora (Parliament).
He added that this question has been unequivocally clarified by the august Supreme Court in the judgment titled “Ch. Nisar Ali Khan vs. Federation of Pakistan” and the judgment was rendered by a larger bench consisting of five judges.
The judge said the relevant portion is reproduced as follows, “A lot of emphasis has been laid by Muhammad Akram Sheikh, Senior Advocate Supreme Court appearing for the petitioner upon the Chief Justice of Pakistan being a consultee in the matter of appointment of the Chairman, NAB and suggestions and recommendation having been made by this Court in that regard in various judgments including the judgment delivered in the case of Shahid Orakazi and another v. Pakistan through Secretary Law, Ministry of Law, Islamabad and another PLD 2011 SC 365.”
It further said, “As against that the learned counsel for respondent No. 3 as well as the learned Attorney General for Pakistan have argued with vehemence that the Chief Justice of Pakistan does not figure in the provisions of section 6(b)(i) of the National Accountability Ordinance, 1999 as a consultee and that this Court had no jurisdiction to add a consultee to the process of appointment of a Chairman, National Accountability Bureau where the relevant law did not make him so. We have found all such submissions to be missing the point.
It goes without saying that a suggestion or a recommendation made by this Court in a judgment, though entitled to due respect, deference and consideration, does not travel beyond a suggestion or a recommendation and it does not by itself assume the status of law. By its nature and form a suggestion or a recommendation is simply what it is, nothing more and nothing less. In this view of the matter this aspect of the case may not detain us any further.”
The IHC bench maintained that the august Supreme Court has affirmed the validity of appointment of Chairman of the Bureau in consultation with the leaders of the House and Opposition in the National Assembly.
However, while reiterating the observations made in the case reported as “Shahid Orakazi and another vs. Pakistan through secretary Law, Ministry of Law, Islamabad, the august Supreme Court has observed and held as follows:- “It, thus, stands settled that a constitutionally or statutorily required “consultation” has to be effective, meaningful, purposive, consensus oriented, leaving no room for complaint of arbitrariness or unfair play and in order to establish that a consultation was meaningful and purposive it should manifestly be shown that a serious, sincere and genuine effort was made towards evolving a consensus.
It also stands equally settled that the first priority in any consultation has to be directed towards evolving a consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidate and that consultation practically amounts to an effort made towards meeting of minds.”
In his petition, the petitioner sought a direction regarding implementation of the recommendations/observations made by the august Supreme Court in the case titled “Khan Asfandyar Wali and others vs. Federation of Pakistan through Cabinet Division, Islamabad and others,” relating to appointment of the Chairman NAB. He adopted the stance that the august Supreme Court had suggested appointment of the Chairman by the President in consultation with the Chief Justice of Pakistan.
Justice Athar observed that the mode of appointment of the Chairman of the Bureau has been described under section 6 of the Ordinance of 1999 and the said provision has been amended by the Majlis-e-Shoora (Parliament) from time to time.
He added, “The existing manner of the appointment has been prescribed under clause b(i) of section 6 of the Ordinance of 1999. The statutory provision contemplates that the Chairman shall be appointed by the President “in consultation with the leaders of the House and the Opposition in the National Assembly.”
