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NAB chairman’s removal: Executive empowered

November 03, 2021
NAB chairman’s removal: Executive empowered

ISLAMABAD: The continuation of the National Accountability Bureau (NAB) chairman in office has been placed in the hands of the prime minister and has been put in a vulnerable position and at the mercy of the Executive.

“This will affect the independence and performance of the NAB chief,” renowned constitutional expert Wasim Sajjad told The News. “Now the NAB chief is like the head of the Federal Investigation Agency (FIA), Intelligence Bureau, police or any other institution of the government, controlled by the prime minister, who could be sacked by the chief executive at his will.”

When contacted, former Balochistan Advocate General Salahuddin Mengal said that the procedure provided for the ouster of the NAB chairman by the new presidential ordinance was like clipping the wings of a pigeon so that the bird was disabled to fly.

The lawyer was of the view that a constitutional amendment was required to dispense with the process given in the National Accountability Ordinance (NAO), 1999 for the dismissal of the NAB head through the Supreme Judicial Council (SJC) under Article 209 of the Constitution, which has not been adopted in the present case.

Wasim Sajjad said that after the new ordinance, the NAB head could stay in office only if the prime minister so wanted, and the chief executive would determine whether the NAB chairman has committed misconduct to qualify for his termination.

He said that the protection and security provided to NAB chiefs in the original law has been done away with. Earlier, the executive had no role in ousting the NAB head because such authority rested with the SJC comprising top judges of the superior courts, he said.

The expert said the ordinance has given the power to dislodge the NAB chairman to the president of Pakistan, but it is in name only as in reality it has been bestowed upon the prime minister because the president exercises powers on the advice of the premier under the Constitution.

The new amendment says the chairman may be expelled by the president on the grounds of removal of a Supreme Court judge. Wasim Sajjad explained that it has not been written in the ordinance that the NAB chief will be shown the door in the “same manner and on same grounds” applicable to an apex court judge, facing ouster proceedings. This, he said, has fundamentally changed the procedure for the ejection of the NAB head.

He referred to the process of removal of the auditor general of Pakistan (AGP) and Federal Shariat Court chief justice and judges. He said it has been written in the relevant identical articles 168(5) and 203-C(4A) respectively that these office holders will not be removed from office except in the “like manner and on the like grounds as a judge of the Supreme Court”. This, Wasim Sajjad said, means that they will be ousted only through the SJC as per Article 209.

The expert said that the judges could be terminated on the charge of misconduct as delineated in the code of conduct, which also includes wrong behaviour, dishonesty, taking bribes etc. He said that the confusion about how the cases being tried by the accountability courts would be transferred to the concerned authorities, departments and courts to deal with under the ordinary laws persisted and has not been taken care of in the new ordinance.

He said when the accountability judges have no jurisdiction to hear such references under the previous ordinance, how can they transmit them to other forums. This is a missing link. That is why, he said, several cases, which are covered by the earlier ordinance, have not so far been transferred from the accountability courts, which are unclear about the process.

Wasim Sajjad said that an error in the previous ordinance has been corrected in the new one as it has now been left to the accountability courts to decide about the surety amount of the bail. The new ordinance has provided that when an accused person is released on bail, the amount of security will be fixed in the manner as deemed just and fit by the court.

He also pointed out that some offences pertaining to money laundering and fraud, which have previously been taken out of NAB’s purview, have now been included in its domain. The earlier ordinance has already been challenged in a high court. The new one may also be raised in the same petitions. The opposition parties have rejected both the ordinances and their leaders, who have been arraigned under the NAO, have declared that they would not rely on them to seek relief. Until now, none of them has so far applied to the concerned accountability court for the purpose. However, a number of ordinary accused persons have invoked the ordinance reprieve. These are pending decisions by the accountability courts.