LAHORE: The Supreme Court on Tuesday gave a month’s deadline to the federal government to fill the vacant posts of the National Accountability Bureau chairman and Prosecutor General, Accountability.
A three-member bench comprising Justice Javed Iqbal, Justice Khilji Arif Hussain and Justice Asif Saeed Khan Khosa, issued the directions while disposing of a constitutional petition filed by Al-Jehad Trust challenging the appointment of deputy chairman NAB, Javed Zia Qazi, and seeking direction to restrain him from exercising the delegated power of chairman. The NAB chairman had delegated some of his powers to the deputy chairman through an order on October 10, 2010.
The bench said the court had intentionally avoided ordering the closing down of NAB or restraining its deputy chairman from functioning as acting chairman, since this would badly affect the functioning of the accountability courts, inquires and investigations pending in the bureau.
“Keeping in view the drastic implications and the alarming possibilities hinted at by the attorney general for Pakistan we tend to agree with him that instead of becoming instrumental in closing down the National Accountability Bureau and winding up the inquiries, investigations and trials being presently conducted by it, we may provide one more opportunity to the federal government to fill the offices of the chairman and the Prosecutor-General Accountability within a reasonable time,” said the court.
The court further held that if the government failed to fill both vacant seats in one month, the deputy chairman would automatically be barred from exercising the delegated powers of chairman NAB and the Bureau would become non-functional.
In its 10-page judgment authored by Justice Khosa, the court observed, “If in such an eventuality, the National Accountability Bureau practically ceases to exist or function under the National Accountability Ordinance, 1999 then the blame shall rest squarely upon the shoulders of the federal government.”
Advocate Habibul Wahab Alkhairi appeared on behalf of the petitioner while Waseem Sajjad represented the deputy chairman NAB. The court had heard the case in Islamabad and reserved the judgment on June 1, which was announced on Tuesday at the SC Lahore registry.
The court pointed out that chairman NAB might delegate some power to the deputy chairman under section 34-A of the National Accountability Ordinance 1999 but he had no independent duties or functions of his own and his only job was to assist the chairman in the performance of his duties and to carry out such functions as might be directed by the chairman.
The office of the chairman had been lying vacant for the last many months and the deputy chairman cannot exercise the delegated powers for an indefinite period when there is no chairman on the scene, said the court. Under the law of contract a delegation comes to an end when the delegator (chairman) vanishes from the scene.
“Statutory delegation during a vacancy in the office of the delegator can not be stretched to a period which is unduly protracted and indefinite. In these circumstances, an impression is well founded and such an exercise may amount to committing a fraud with or upon the relevant statute,” said the court, adding that qualifications for the office of Chairman under section 6(ba) were different from those specified in section 7(aa) for the office of deputy chairman.
The court observed, “It seems to be preposterous and outrageous if in the garb of a statutory delegation of some of his powers by a chairman in favour of a deputy chairman the latter may be permitted to keep on exercising for a protracted and indefinite period of time while the office of the Chairman remains, or is deliberately kept, vacant for months at an end. Such clothing of the deputy chairman, who is otherwise not even qualified to be appointed as Chairman, virtually and practically amount to permitting him to act as acting chairman.”
The court said the SC in the case of The Bank of Punjab vs Haris Steel SC had clearly held that there could not be an acting chairman at a time when the chairman’s office was vacant.
The court said the Attorney-General for Pakistan Maulvi Anwarul Haq had very candidly conceded that the whole scheme of the NAB Ordinance, 1999 revolved around the office of the chairman and, academically speaking, NAB stood paralysed when the office of the chairman was vacant. He has also conceded that despite the appropriate directions issued by the SC in numerous cases, the offices of chairman and the Prosecutor-General Accountability have been lying vacant for a considerable period of time.
Haq had pointed out that the vacant seats were gravely and prejudicially affecting the normal and smooth functioning and performance of NAB and the court was thus requested that the federal government be directed to fill the offices on an emergency basis, rather than ordering their closure. The court has agreed with this opinion.
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