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June 14, 2019

Sukhera’s removal alien to relevant law

Top Story

June 14, 2019

ISLAMABAD: Mushtaq Ahmed Sukhera’s removal as the Federal Tax Ombudsman (FTO) by President Dr Arif Alvi is not sanctioned by the relevant law.

“The FTO can’t be oustedthis way as per an act of parliament passed in March 2013 that governs his office,” prominent constitutional expert Omar Sajjad told The News when contacted for comments.

He referred to Section 5 of the act, which says an ombudsman may be removed from office through Supreme Judicial Council [SJC] on the grounds of being incapable of properly performing duties of his office by reason of physical or mental incapacity or found to have been guilty misconduct.

Omar Sajjad said the law clearly states how an FTO can be driven out of his position. Only the SJC, he said, can do so as per its 2009 rules and any other method adopted to divest him of office is illegal.

Sukhera is said to be consulting with lawyers and friends about his course of action on his expulsion.

A reading of the notification of the Ministry of Law and Justice in pursuance of the president’s order withdrew ab initio Sukhera’s appointment [from the date it was issued], made on dated August 31, 2017, and the word “removal” [which occurs in the act of Parliament] has not been used in it.

Omar Sajjad said that if the same formula is applied to all other cases, the appointment notification of anyone can be “withdrawn ab initio”. He said only a competent court of law can issue such an order after holding a proper hearing in the case.

The original law, establishment of the office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (Amended and updated vide Ordinance No. LXXII of 2002) President’s Order No.1 of 1983, which was replaced in 2013, provided a different procedure for the removal of the ombudsman.

According to its Section 6, the Mohtasib may be removed from office by the president on the ground of misconduct or of being incapable of properly performing the duties of his office by reasons of physical or mental incapacity: Provided that the Mohtasib may, if he sees fit and appropriate to refute any charges, request an open public evidentiary hearing before the SJC and, if such a hearing is not held within thirty days of receipt of such request or not concluded within ninety days of its receipt, the Mohtasib will be absolved of any and all stigma whatever. In such circumstances, the Mohtasib may choose to leave his office and shall be entitled to receive full remuneration and benefits for the rest of his term. If the Mohtasib makes a request under this proviso, he shall not perform his functions under this order until the hearing before the SJC has concluded. A Mohtasib removed from office on the ground of misconduct shall not be eligible to hold any office of profit in the service of Pakistan or for election as member of Parliament or a provincial assembly or any local body.

Omar Sajjad said that under the National Accountability Ordinance the National Accountability Bureau (NAB) chairman can also be removed through the SJC and its section 6 says that he shall not be removed except on the grounds of removal of Judge of Supreme Court of Pakistan. The ground listed in article 209 of the Constitution which include he may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or may have been guilty of misconduct, he said adding that the grounds are the same as those applicable to the FTO.

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