ISLAMABAD – President Asif Ali Zardari has proposed to reappoint Justice (r) Deedar Hussain Shah as National Accountability Bureau chairman and sought the opinion of the prime minister as Leader of the House and the Opposition Leader in the National Assembly Chaudhry Nisar Ali Khan, through two separate letters as part of the consultative process mandatory for such appointment.
Spokesman to the President Farhatullah Babar said Nisar’s opinion has been sought through a letter signed by Secretary Malik Asif Hayat on behalf of the president that was also sent to the prime minister for forwarding the same to the opposition leader.
“Mr Justice (r) Deedar Hussain Shah is a man of integrity with rich legal background. Thus he was elevated from the bar as a judge to the Sindh High Court and remained the chief justice of the Sindh High Court. He then retired as judge of the Supreme Court of Pakistan and he is a suitable candidate for the appointment to this post,” said the president’s letter addressed to the opposition leader said.
The president also gave background of the nomination of Shah and took note of the earlier objections raised that he had “political affiliation with the ruling political party.” Taking note of it the president said Shah remained member of the Sindh Provincial Assembly long before he was appointed as judge of the Sindh High Court in 1994.
He was appointed as a judge of the Sindh High Court keeping in view his vast professional experience and unquestionable integrity and subsequently elevated as judge of the Supreme Court of Pakistan in April 2000 and served in the apex court until 2004, the president’s letter said. Babar said in order to make the issue crystal clear the president’s letter also quoted the 1996 Supreme Court judgement in Al-Jehad Trust case that settled the issue of political affiliation of a candidate for judgeship and concluded that political affiliation alone may not disqualify a candidate.
The relevant part of the SC judgement in the Al-Jehad Trust case quoted in the letter states, “That the question whether political affiliation of a candidate for judgeship of superior court would disqualify him to be appointed as judge of the high court, has been examined in depth, and it has been found that political affiliation alone may not disqualify the candidate provided he is a person of unimpeachable integrity having sound knowledge in law and is recommended by the chief justice of the high court concerned and the chief justice of Pakistan.
After he is appointed judge of the high court and takes oath to perform is functions without fear, favour or ill-will and decides cases purely on merits, he would be as good as a judge as any other judge, who had no political affiliation before assuming the office of a Judge of the high court.”
The letter to opposition leader also draws attention to the court’s observations in the same judgement at page 511 thus:-“That a person cannot be appointed as a judge simpliciter for the reason he has political affiliation with a particular political party, but if he is a man of integrity and has sound knowledge of law and is recommended by the chief justice of the high court concerned and the chief justice of Pakistan, then his past political affiliation will not be a disqualification.
A person of integrity and sound knowledge normally severs his past connections with the political party with which he had affiliation and decides the matter purely on merits.” Babar said the president’s letter also points out that the former prime minister Nawaz Sharif had in 2000 expressed full confidence in Justice Shah and quotes from the historical record.
“It is apparent on record that former prime minister Nawaz Sharif filed criminal Petition No 172 of 2000 before the Supreme Court of Pakistan under Article 185(3) read with Article 187-A of the constitution of the Islamic Republic of Pakistan, 1973, against the order dated 27.06.2000 passed by the full bench of high court of Sindh in criminal appeal No 43 of 2000 wherein Nawaz Sharif reposed full confidence in the then chief justice, Justice Deedar Hussain Shah”, the letter said.
Thus Nawaz Sharif at the most critical juncture of his life reposed the fullest confidence in Justice Shah, the president’s letter said. “Not only this but he has cited the conduct of Justice Shah, then chief justice of the Sindh High Court, as precedent during the tenure of his successor which is manifestly clear from the petition for leave to appeal under Article 185(3) against order dated 27.06.2000 passed in Cr Appeal No .43/2000 by full bench of the Sindh High Court”, the letter said.
The honorable leader of the opposition in the National Assembly is requested to kindly consider the proposal of appointment of Justice (r) Shah as NAB chairman and convey his views in this behalf, the president’s letter signed by Secretary Malik Asif Hayat said. In a separate letter addressed to the prime minister, the president said that in terms of Section 6 (b)(i) of the NAB Ordinance 1999, the consultation with the leader of the house and the leader of the opposition in the National Assembly is a requirement of law for purposes of appointment of NAB chairman.
Therefore, consultation with leader of the House (the prime minister of Pakistan) is made to meet the requirement of law, the letter to the prime minister also signed by Secretary Asif Hayat said. According to the available information on record Justice (r) Deedar Hussain Shah is a suitable person for appointment to the post being a man of integrity with rich legal knowledge and background as he was elevated from the bar as a judge to the Sindh High Court and remained chief justice of the Sindh High Court before his elevation as a judge to the Supreme Court of Pakistan, the letter to the prime minister said.
Admittedly, Justice (r) Shah meets the qualifications for the appointment on vacancy in the office of NAB chairman. To make the process of consultation meaningful, the prime minister may consider the above facts resume qua this appointment in order to fulfill the legal requirements. A separate letter has also been written for carrying out the process of consultation with the leader of the opposition in the National Assembly, the president’s letter to the prime minister said asking him that the letter be delivered to the leader of the opposition in National Assembly.
Babar said relevant provisions of the law laying down qualifications for the appointment of NAB chairman state as under: “6.(ba) A person shall not be appointed as NAB chairman unless he:
(i) is a retired chief justice or a judge of the Supreme Court or a chief justice of a high court; or
(ii) is a retired officer of the armed forces of Pakistan equivalent to the rank of a lieutenant general; or
(iii) is a retired federal government officer in BPS-22 or equivalent.”
Meanwhile, Leader of the Opposition in the National Assembly Nisar Ali Khan has denied receiving any letter from the president.
