ISLAMABAD: Islamabad High Court (IHC) on Tuesday rejected a petition seeking Supreme Court’s consultation for the appointment of the National Accountability Bureau chairman.

IHC Chief Justice Athar Minallah ruled that the law empowered the chosen representatives to make the appointment of NAB chairman through meaningful consultation.

The petitioner was seeking a direction regarding the implementation of the recommendations/observations made by the SC in the Asfandyar Wali case and others relating to appointment of the NAB chairman.

The apex court had suggested appointment of the chairman by the president in consultation with the chief justice of Pakistan.

The National Accountability Ordinance, 1999 was promulgated and notified in the official gazette on Nov 16, 1999. The mode of appointment of the chairman of the bureau has been described under section 6 of the ordinance of 1999.

IHC CJ says law empowers chosen representatives to make the choice through consultation

The said provision has been amended by parliament from time to time. The existing manner of appointment has been prescribed under clause b (i) of section 6 of the ordinance.

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”.

The vires of section 6 of the 1999 ordinance have not been challenged through the petition in hand, Justice Minallah observed adding that the SC has also not questioned the vires of section 6.

The court noted that parliament is the supreme lawmaking organ of the state. The mode of appointment of the chairman described under section 6 is definitely not in any manner whatsoever in violation of constitutional provisions.

The appointment of the chairman of the bureau by the president in consultation with the leaders of the chosen representatives in the NA does not violate the fundamental rights guaranteed under the Constitution nor any other provisions thereof, the court order asserted.

Justice Minallah observed that the counsel for the petitioner could not persuade the court that a suggestion or recommendation made by the apex court is binding on parliament.

The court order explained that “his question has been unequivocally clarified by the august Supreme Court in the judgement titled Ch. Nisar Ali Khan vs. Federation of Pakistan.”

The judgement was rendered by a larger bench consisting of five honourable judges.

The bench was of the view 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.

The IHC’s order referred to the apex court judgement of another case in which the SC has affirmed the validity of the appointment of the NAB chairman in consultation with the leaders of the house and opposition in the NA.

However, while reiterating the observations the apex court has observed and held 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.

The court elaborated that “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.”

IHC subsequently dismissed the petition.

Published in Dawn, June 8th, 2022