NAB special prosecutor’s appointment raises many questions

ISLAMABAD: Questions have been raised over the appointment of a special prosecutor to stand for the National Accountability Bureau (NAB) in the Supreme Court in its appeal relating to the Hudaibiya Paper Mills, owned by the Sharifs.

Shah Khawar, who has been named the special prosecutor by NAB Chairman Justice (R) Javed Iqbal, is a senior lawyer. He had also served as the deputy attorney general and additional justice of the Lahore High Court (LHC) but was not confirmed as the judge by the judicial commission for its own reasons.

The National Accountability Ordinance (NAO) also gave rise to questions about the NAB chairman’s power to make the instant nomination.

As per clause 5 of section 8, the Prosecutor General (PG), with the approval of the NAB chairman, may appoint special prosecutors to conduct prosecution of cases and to nominate advocates to institute or defend cases, appeals, petitions, applications and all other matters before any court or tribunal including the high courts and Supreme Court in matters arising out of or relating to proceedings under the NAO.

A simple reading of this provision makes it clear that the power of nominating special prosecutors rests with the PG, who is to do so with the NAB chief’s approval. This doesn’t bestow such authority on the NAB chairman, who, however, has exercised it by naming Shah Khawar the special prosecutor.

Currently, there is no prosecutor general after the retirement of the PG last month after three-year tenure. However, clause (a) of section 28 says the NAB chairman or an officer of the organisation duly authorised by him may appoint such officers and staff as he may consider necessary for the efficient performance of its functions and exercise of powers under the NAO.

There is no mention of special prosecutors in this clause. But if such prosecutors are included in the definition of “officers” and “staff”, the NAB chairman has the power to appoint them. The second part of this provision is sweeping as it arms the NAB chief with the authority to select officers and staff “necessary for the efficient performance of its [NAB] functions and exercise of powers” under the NAO.

The NAB head “may” appoint such officers and staffers, but the determination of their emoluments will require the approval of the President of Pakistan. Clause (c) says these officers and members of staff will be entitled to such salary, allowances and other terms and conditions of services as the NAB chairman may, with the approval of the President (read the federal government), determine.

A possibility that the president may not approve the remunerations and other terms of the contract with Shah Khawar, as recommended by Javed Iqbal, can’t be ruled out.

Already, the president has objected to at least two proposed names for the job of the PG, sent by the NAB chief, who is apparently in a hurry to get the appointment notified. According to section 8, the President, in consultation with the NAB chief, may appoint any person, who is qualified to be appointed as a judge of the Supreme Court, as PG.

The federal government is clear that nominating the PG was its authority and “consultation” with the NAB chairman was meant for harmony between the PG and the NAB head. After constantly facing embarrassment in the Supreme Court due to the poor performance of the NAB prosecutor in the Hudaibya Paper Mills appeal, Javed Iqbal decided to select a lawyer as the special prosecutor.

Shah Khawar had had a long association with the Pakistan People’s Party (PPP) in its early years, and is known to have slapped a person, who later came out to be a senior lawyer and politician, for distributing sweets on Zulfikar Ali Bhutto’s hanging.

In February this year, Justice Qazi Faez Isa, as part of a three-judge bench, declared ‘improper’ the government practice of engaging private counsel to plead their cases in court. “This practice must stop,” he wrote in a 19-page verdict.

“[Paying] the fee of private advocate [constitutes] financial impropriety by the person who does so on behalf of the government, subjecting him/her to disciplinary action in accordance with the applicable law,” it cautioned.

The judgment had come in an appeal on a different matter — it related to Oct 6, 2015 order of the Islamabad High Court rejecting the plea of Rasheed Ahmad, who was dismissed as chairman of the Pakistan Electronic Media Regulatory Authority on April 14, 2014.

When the appeal came up for hearing before the bench, headed by Justice Dost Muhammad Khan, the court noticed that the government side was represented by a private counsel, and that there was no record to show that it nominated him.

Justice Isa wrote that a private litigant has the right to engage the services of any advocate, but the federal and provincial governments have a host of law officers who are paid out of the public exchequer. If a government contends that none amongst its law officers is capable of handling cases, “we must ask why incompetent persons have been appointed. In such a scenario, the public suffers twice; first, they have to pay for incompetent law officers and then they have to pay again for the services of competent counsel.”

The judge said that if the public exchequer is not there to be squandered in this manner, the verdict regretted adding the Supreme Court had observed in 2012 Muhammad Yasin case that the State must protect, “the belongings and assets of the State and its citizens from waste and malversation.”

The incumbent Chief Justice, Mian Saqib Nisar, as a judge of the Lahore High Court, had also taken exception to the engagement of a private counsel by the Punjab Housing Department in September 2007. At the time, he had observed that the government was causing losses to the national exchequer by engaging private counsel, despite the availability of law officers to do the work.