Issue does not infringe upon fundamental rights, SC told

ISLAMABAD - The appointment of the NAB chairman under Section 6(b)(i) of the NAB Ordinance has not violated the fundamental right of the opposition leader in the national assembly, argued the Federation's counsel. A four-member bench of the apex court headed by Justice Javed Iqbal and comprising Justice Tassaduq Hussain Jillani, Justice Raja Fayyaz Ahmed and Justice Asif Saeed Khosa heard different petitions against the appointment of incumbent Chairman NAB Justice (retd) Deedar Hussein Shah here on Tuesday. Chaudhry Nisar Ali Khan, Opposition Leader in the National Assembly, and Shahid Orakzai, a freelance journalist, have challenged the appointment of Justice (Retd) Deedar Hussain Shah as Chairman NAB, appointed by President Asif Ali Zardari on October 8, 2010. Ch Nisar in his petition has contended that new chairman NAB was appointed without consultation with the opposition leader, and that the consultation with the Chief Justice of Pakistan was mandatory for NAB chairman's appointment. Counsel for Federation, Abdul Hafeez Pirzada, said that leader of the opposition was of minority in the parliament therefore how could he say that his fundamental rights were violated. Prime Minister Yousuf Raza Gilani had proposed the name of Justice (Retd) Mukhtar Junejo to be made Chairman NAB but Ch Nisar after consultation with his party leaders rejected the name and requested the PM in black and white to appoint a person of impeccable character for the slot which would be acceptable to all. Later, he was given name of Justice (Retd) Deedar Hussain Shah but the reply of the leader of opposition was once again the same. Pirzada said Justice (Retd) Deedar Hussain Shah had unblemished record as a judge of Sindh High Court and then the Supreme Court. He said that the consultation in the judicial process and the political process was different. "You can't equate consultation in appointment of judges with the appointment in the executive posts," he added. Most of the functions of the NAB chairman were of executive in nature like seizing property. But Khosa said that NAB chief also involved in plea-bargaining. Pirzada stated that plea bargaining was the quasi judicial function, but that is also after the approval of the court. Justice Khosa remarked that the word consultation was introduced to allay the apprehensions of the opposition, as in the past the NAB was used for witch-hunt. The honourable judge said that consultation was also to develop across the board consensus. Pirzada remarked if was humanly possible to allay all the apprehensions. Regarding the consultation with Chief Justice of Pakistan in NAB chairman's appointment, the learned counsel said that according to Asfandyar Wali case, the CJP had primacy in judges' appointment but not in executive posts. Shahid Orakzai, who has also challenged the appointment of NAB chairman, said the acting election commissioner was nominated by the chief justice of Pakistan. The learned counsel said the court had the power to strike down appointments on executive posts but had no power of appointment on those posts. Justice Khosa said if the opposition leader in the national assembly had raised objections on Deedar Shah's appointment as NAB chairman then the PM after removing them should have contacted him again. Pirzada said, "You are talking about an ideal situation." He said it was not an ideal Parliament, adding a country, which had gone through difficulties, should be given time to strengthen its institutions. Attorney General Maulvi Anwar-ul-Haq informed the court that no such noting was done by the principal secretary on the summary. In pursuant to the judgement passed by the SC in Dr Mubashar Hassan's case on December 16, 2009, the then chairman NAB Naveed Ahsan, resigned from his post in February 2010. After the Naveed's retirement Javed Qazi, deputy chairman NAB, performed as acting chairman NAB. On 1st Sept 2010 the apex court passed the judgement that the assumption of the position of acting chairman NAB by Javed Qazi was illegal and directed the govt to appoint a regular chairman NAB within 30 days, therefore President Zardari appointed Justice (Retd) Deedar Hussain as chairman NAB. The case was adjourned till today (Wednesday).

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