ISLAMABAD: The federal government moved a petition before the Supreme Court on Saturday seeking a review of a court verdict last month that blocked the reappointment in future of Justice (retd) Syed Deedar Hussain Shah as chairman of the National Accountability Bureau (NAB), pleading that the judgment suffered from “apparent errors”.
“The errors in the judgment are apparent on the face of the record and are so manifest that no court could permit such errors,” said the petition authored by senior government counsel Abdul Hafeez Pirzada.
It said the alleged errors had “resulted in miscarriage of justice, erroneous interpretation and application of constitutional and sub-constitutional provisions, exercise of powers beyond the jurisdiction and judicial power of this court and erroneous application and reliance upon earlier precedent case law”.
The Supreme Court had, on March 22, ruled the appointment of Justice Shah as NAB chairman illegal after accepting challenges from the Leader of Opposition in the National Assembly, Chaudhry Nisar Ali Khan, representing the PML-N, and Shahid Orakzai.
The government petition contended that “by no stretch of imagination or logic”, two notifications about the appointment of Justice Shah could be considered two separate appointments in the eyes of the law.
The detailed judgment of the court had held that because of two appointments to the same office – which it said were “botched and messed up” by a wrong advice of the Law Ministry to relevant quarters – that Justice Shah “stands disqualified to be appointed to that office again on account of the provisions regarding `non-extendable period` contained in Section 6 (b) (i) of the National Accountability Bureau Ordinance, 1999”.
But the new petition said there was “no cloak-and-dagger affair” and “nothing was done in the dark of the night” in issuing the second notification dated Feb 9, 2011, which it said, on the contrary, emanated from “the express desire/observations/requirements of this court” during the hearing of the main petitions on Feb 8.
During those proceedings, it said, firstly a concession was sought from Mr Pirzada that Justice Shah`s appointment of Oct 7 last year was not properly made and, on his refusal to concede that position, an observation of the court came that “there were some procedural lacunae and whether these could be rectified”.
The response by the counsel, the petition said, was that there was always room for improvement and rectification could be undertaken to deal with some of the observations and put the controversy at rest if a period of one week was given for that purpose. In response, the court directed that the rectification, if any, must be completed by the following morning (Feb 9), a date to which further hearing was adjourned.
The petition contended that the principal issue under discussion then was whether the prime minister had rendered his advice in regard to the appointment to the president as per the overriding mandate of Article 48 of the Constitution, which requires the president to act on the advice of the prime minister. “This aspect, however, receives least attention in the judgment,” the petition contended.
It said that on Feb 9 – a date of hearing that it said had “apparently accidentally been omitted from the judgment” – the counsel informed the bench that an advice had been tendered by the prime minister to the president who, by accepting the advice, appointed Justice Shah as NAB chairman.
The court was also informed, it said, that the original summaries had been received duly signed by the prime minister and the president in the office of the Attorney General at 2.30am on the morning of Feb 9 and that the originals were produced before the court, which returned them after retaining their copies.
Citing the entire proceedings of that day, the petition went on to recall that Justice Tasadduq Hussain Jillani did not participate as member of the bench when it resumed hearing on next date and, consequently, the petitions were heard by three judges and not by the bench of four as originally constituted.
Referring to the observation in the verdict that the senior counsel had very casually maintained that this court could order reduction of the respondent’s second term of office of four years by deducting the period for which he had already served as chairman, the petition contended that counsel was “neither inane nor absurd to invite such an observation”.
“On the contrary, it is self-contradictory when the judgment stated in no unclear terms that the term of office of the chairman NAB is fixed by statute and the court cannot interfere with that, it said, and added: “The pre-emptive and anticipatory nature of the findings, which appear to form one of the foundations of the judgment constitute an error floating on the surface of the verdict which is liable to be reviewed and recalled by the court.”
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