ISLAMABAD - The Islamabad High Court (IHC) Wednesday rejected a petition challenging the appointment of Shahzad Akbar as Advisor to the Prime Minister on Accountability and Interior and declared that appointment of an advisor is “exclusive discretion of the prime minister.”

It further declared that in this regard no eligibility criterion has been prescribed. “It is the exclusive prerogative of Prime minister to choose the person for rendering him advice and thus tendering advice regarding appointing the latter as an Adviser,” ruled the court.

In this matter, a single bench of IHC comprising Chief Justice of IHC Justice Athar Minallah announced his reserved judgment which he had reserved earlier after hearing the arguments in the petition filed by Syed Pervez Zahoor.

In the petition, he challenged the appointment of Mirza Shahzad Akbar as Adviser and as Chairman of the Assets Recovery Unit. The petitioner also asserted in his petition that Akbar is illegally exercising executive powers and that, allegedly, through abuse of his authority he is influencing the NAB and other investigating agencies.

The IHC bench observed that it is not the case of the petitioner that he was harmed by the exercise of executive authority by Akbar nor that his fundamental rights have been violated. There is no material attached with the petition in support of this assertion. Justice Athar noted in its verdict, “For the above reasons, the petition is disposed of with the expectation that Shahzad Akbar will advise the Prime Minister having regard to the status of an Adviser envisaged under the Constitution, read with the scheme of governance prescribed under the Rules of 1973.”

He added, “The petitioner has not placed on record any material in support of his contention that respondent Shahzad Akbar may have interfered with the matters which exclusively fall within the domain of the Bureau under the Ordinance of 1999 or the Agency under the Act of 1973. There is also nothing on record to indicate that the rights of the petitioner have been prejudiced by an act of respondent Shahzad Akbar  so as to treat him as an aggrieved person for the purposes of Article 199 of the Constitution.”

The IHC bench observed that with humility and reverence, the observations recorded by the learned High Court of Sindh in its judgment, dated 17.08.2020, are not enough for admitting this petition. It stated that the Prime Minister may tender advice to the President to appoint not more than five Advisers. The tendering of advice under Article 93 of the Constitution is within the exclusive discretion of the Prime Minister and in this regard no eligibility criterion has been prescribed. 

It further said, “A Court cannot substitute its own opinion with that of the Prime Minister and the matter thus falls outside the ambit of justiciability.”

Mentioning a judgment of the High Court of Sindh, the court stated that an Advisor is a person who merely gives advice in a particular field. An Advisor, therefore, cannot be given nor can the latter exercise powers or perform functions in derogation of the mandatory scheme of the Rules of 1973 read with the provisions of the Constitution. 

The IHC bench further said that as already noted above, the objection regarding Akbar’s appointment as Chairman of the Assets Recovery Unit cannot be considered because it had been raised before the august Supreme Court and the detailed judgment in the matter is awaited. No case at this stage is made out for issuance of a writ of quo warranto in relation to the appointment of Akbar as an Advisor because neither has a relevant ground been raised nor has material been placed on record for admitting the petition to regular hearing.

The IHC Chief Justice also noted that the Bureau has been established under the NAB Ordinance, 1999. “An Adviser appointed under Article 93 of the Constitution does not have any power whatsoever to, directly or indirectly, instruct, dictate or in any other manner interfere with the powers conferred in the Bureau under the Ordinance of 1999. Likewise, the FIA has been established under the Federal Investigation Agency Act 1974,” maintained the judge.

Chief Justice Athar maintained, “An Advisor is not a member of the Federal Cabinet nor entitled to attend its meetings except when required to do so by the Prime Minister.”