Article 209 not applicable if NAB chairman’s appointment notice cancelled: SC

ISLAMABAD – The Supreme Court (SC), after hearing petitions against the appointment of Justice (r) Syed Deedar Hussain Shah as NAB chairman, has said that if notification of the chairman’s appointment is cancelled, Article 209 (judicial misconduct) would not be applicable.
A four-member bench, comprising of Justice Javed Iqbal, Justice Tassaduq Hussain Jillanai, Justice Raja Fayyaz Ahmed and Justice Asif Saeed Khan Khosa, noted that consultation process, provided in section 6 of the NAB ordinance, is of legal and political nature.
Dr Khalid Ranjha, counsel for Justice (r) Deedar Hussain Shah, stated that the High Court should first decide the matter and later the Supreme Court should hear an appeal against the decision. He claimed that his client could only be removed under Article 209 of the Constitution as he was appointed NAB chairman by President Asif Ali Zardari in accordance with the law. Justice Khosa said that, if the appointment was illegal, the court had the right to review the case as it had done in the matter of NAB Prosecutor General Danishwar Malik.
Dr Ranjha said that the Law Ministry removed Danishwar Malik after fulfilling requirements under Article 209. However, Justice Khosa said that the court also had to check for the law under which acting Prosecutor General NAB was functioning. He added, referring to history, that the system of consultation with the Leader of the Opposition in appointment of NAB chairman was introduced to allow the NAB chairman enjoy across the board confidence.
Justice Jillani said that the court had to examine the legal part and not the personality of Justice (r) Hussain Shah. Ranjha said that the Leader of House has consistently tried to consult the Opposition Leader for the appointment of NAB chairman. However, he had constantly objected. In response to a question that an advice was given by the PM to the President, Justice Khosa clarified that media reports revealed that no advice was given.
Counsel for Federation Abdul Hafeez Pirzada said that Section 6 of NAB Ordinance 1999 had legal backing but was political in nature. He stated that consultation does not give dictatorial right or veto power to the Opposition Leader to stop anything. He said that Article 186A has underwent plenty of changes. Earlier, the Supreme Court could have lifted the case from any High Court.
However, after the 18th Amendment, it did not have the right to do the same. Justice Khosa remarked that the SC’s power could not be hijacked if a matter is before the apex court and a petition of similar nature is filed in the High Court. He said that power of the apex court is supreme in certain cases.
Akram Sheikh, counsel for Opposition Leader in National Assembly Nisar Ali Khan, said that the whole case is of compliance process but there has been a deliberate defiance of Article 48 of the Constitution. Article 48 says: “In the exercise of his functions, the President shall act in accordance with the advice of the Prime Minister.” Justice Javed Iqbal said that a system, by which the Supreme Court does not need consistent interference, should be devised.