Supreme Court Justice Asif Saeed Khosa has remarked that parliament could enhance the powers of Supreme Court (SC), but it was not authorised to clip its power per constitution.
A five-member bench of SC led by Justice Tassadaq Hussain Jillani took up the NAB chairman appointment case for hearing on Monday.
Akram Sheikh appeared in court on behalf of former opposition leader in National Assembly (NA) Nisar Ali Khan.
He took the plea that the formality of consultation with opposition leader was not met in the matter of appointment of NAB chairman. “A letter was sent asking him to propose a name which was not a consultation in any way,” he added.
“The opposition leader’s reply to this letter was declared illogical. Consultative process has been devised in several courts decisions. President should have called opposition leader to make consultation with him.”
Justice Tassadaq inquired from Akram Sheikh what consultation was in his view.
Sheikh replied, “If it is meaningful, purposeful and with a view to develop consensus then it can be called consultation.”
Justice Khosa remarked, “If there is no consensus in the consultation process then how will a chairman be appointed?”
Sheikh said the matter was then referred to chief justice of Pakistan.
“The role of chief justice has been given in connection with appointment of chief justice in Asfand Yar Wali case. The role of president is ceremonial in the matter of appointment.”
Justice Jillani remarked, “The purpose behind consultation with chief justice in regard to appointment of chairman NAB was to make the appointment non controversial. In parliamentary system, president is bound to accept the advice of the prime minister.”
Justice Khosa remarked, “The president has written in his letter that opposition leader had not opposed the name recommended by the prime minister.”
Sheikh said the proposal in connection with consultation with chief justice was given in Deedar Shah case.
Justice Khosa remarked, “This proposal was given in the light of proposals of larger benches. Parliament can enhance the powers of the Supreme Court under the constitution, but it can not curtail them.”
Justice Jillani observed the president wrote a letter to opposition leader for consultation.
Upon it the court was told that no such letter was available in the record.
On summoning, Attorney General (AG) Irfan Qadir presented the original notification on appointment of NAB Chairman Fasih Bokhari in the court.
Akram Sheikh said the role of chief justice in the appointment of the chairman was mentioned in the four decisions of the court.
Justice Khosa remarked “Implementation of court directives is essential per constitution.’
Sheikh said the SC remarks could not be ignored.
Justice Khosa said the role of chief justice had been given as arbitrator in the decision that had been cited. “The opposition leader raised no objection on Fasih Bokhari in his letter. It is a centuries old tradition that silence is considered yes.”
Concluding his arguments, Sheikh said opposition leaders stressed on consultation in the light of the decisions of the court.
Latif Khosa, counsel for Fasih Bokhari, argued that the opposition leader had raised objection over the person of former chairman Deedar Shah, but he did not raise any objection over Bokhari.
Khosa said the man who was going to become the prime minister had attacked Supreme Court. “After Al-Jihad trust case, the definition of the word consultation has not been made part of the constitution. If parliament had wanted so it would have made it part of article 260 through the 18th Amendment. Only a proposal was given with respect to the role of chief justice and not an order. Senate committee can evolve solution in the event of any dispute over it,” Khosa said.
The hearing was adjourned until today.