ISLAMABAD: The Supreme Judicial Council (SJC) has deferred further deliberations on a 2019 reference until the federal government comes up with a solution to a legal lacuna about the procedure for removal of the National Accountability Bureau (NAB) chairman.

Presided over by Chief Justice Gulzar Ahmed, the SJC had taken up the reference moved by Advocate Chaudhry Mohammad Saeed Zafar against NAB chairman Javed Iqbal whose four-year tenure is going to complete on Oct 8.

The reference was moved before the SJC against the backdrop of a leaked video showing alleged clandestine meetings of the NAB chairman with a suspect facing NAB inquiry, Tayyaba Gull.

The Pakistan Muslim League-Nawaz (PML-N) government had appointed Mr Iqbal as chairman of the anti-graft watchdog in October 2017 after reaching consensus with the then opposition leader in the National Assembly.

On Monday, the complainant appeared in person before the SJC to plead his point.

Asks AG to get govt instruction, response to issue

However, the proceedings were postponed after the SJC suggested that Attorney General for Pakistan Khalid Jawed Khan should seek instructions and clarity from the federal government about the removal procedure, as Section 6 of the NAB ordinance was apparently silent about powers of the SJC-like forums to remove NAB chairman.

The issue cropped up during the SJC proceedings when the 2001 Supreme Court judgement in the Asfandyar Wali Khan case was cited that ruled the NAB chairman should be appointed by the President in consultation with the incumbent CJP. But the SC judgement did not deliberate how to remove the NAB chairman, assuming that since the president appoints the chairman he also has the power to terminate his service.

Section 6 of the National Accountability Ordinance (NAO) 1999, which deals with the appointment procedure of the NAB chairman, says that the president in consultation with the Leader of the House and the Leader of the Opposition in the National Assembly appoints bureau’s chairman for a non-extendable period of four years. The ordinance links his removal to the grounds set for the removal of a Supreme Court judge.

The condition of removal of a superior court judge under Article 209 of the Constitution has been mentioned for becoming incapable of properly performing the duties of his office by reason of physical or mental incapacity or have been guilty of misconduct. However, the specific forum, which is SJC, as referred in the laws governing the appointment and removal of the auditor general of Pakistan and the federal ombudsman has not been named in the case of NAB chairman.

The complainant, Advocate Saeed Zafar, through the reference alleged that ‘personal meeting’ with an accused person in a ‘private room’ and allegedly indulging in ‘objectionable acts’ was very much ‘immoral’ and the act on part of the NAB chairman fell squarely within the purview of the ‘misconduct’. Ms Gull was subsequently granted post-arrest bail by the Lahore High Court, The reference highlighted, while alleging that the video clip of their raised questions about “partial, biased and discriminated” accountability process.

During the NAB inquiry, the meeting of suspect Gull with the bureau’s chairman and their subsequent telephonic conversation amounted to gross misconduct on part of such a noble and highest post like that of the head of the accountability bureau, according to the reference.

The complainant requested the SJC to initiate an inquiry against the NAB chairman regarding his alleged gross misconduct besides ordering a forensic test of the alleged video to ascertain its veracity.

The reference pleaded before the council that a simple denial on part of the NAB chairman about the video was insufficient and thus raised question marks on the entire accountability process.

The charges levelled against the NAB chairman were very serious and required a full fact-finding inquiry so that the integrity and the morality of the SJC could be restored in the interest of justice in a situation where the morale of all subordinate staff of the NAB chairman had already been lowered and the watchdog had become controversial.

In the meantime, the SJC should restrain NAB chairman from discharging his duties till a final decision on the reference after forensic examination of the video.

The SJC is expected to resume the proceedings sometime in September.

Published in Dawn, July 13th, 2021