http://www.zemtv.com/2010/02/27/meray-mutabiq-27-february-2010-latest/
War between SC and GoP
The NAB Chairman, Naved Ahsan, has resigned. He was caught in the crossfire between the Supreme Court (SC) and the Government of Pakistan (GoP). The SC wanted the NAB Chairman, Prosecutor General and Deputy Prosecutor General sacked for not implementing its orders to reopen corruption cases against President Asif Zardari, NAB Chairman on long leave
Updated at: 1613 PST, Wednesday, March 10, 2010
ISLAMABAD: National Accountability Bureau Chairman Naveed Ahsan has gone on long leave and Deputy chairman has taken over his responsibilities, Geo News reported Wednesday.
Earlier, on February 24 NAB Chairman Naveed Ahsan tendered his resignation but was asked by Prime Minister Yousuf Raza Gilani to continue till the appointment of his successor.
It is learnt that the NAB chief had been under tremendous pressure since the Supreme Court declared the National Reconciliation Ordinance unconstitutional.
Removal of top NAB officials ‘another nightmare’ for executive
* NAB ordinance likely to end up in parliament for amendments in line with SC verdict of 2001
* SC may have to show executive the way to bypass law for removal of NAB officials
By Saeed Minhas
ISLAMABAD: The removal of National Accountability Bureau (NAB) Chairman Naved Ahsen and Prosecutor General Danishwar Malik – in line with the Supreme Court’s directives contained in the verdict on the NRO – has become another “legal nightmare” for the bureaucracy and the government, according to sources.
The sources said chances were that the NAB ordinance would end up in parliament for amendments in accordance with an SC verdict of 2001. The verdict had directed the then government of Pervez Musharraf to amend Articles 6 and 8 of the NAB ordinance to accommodate the advice of the chief justice in appointments to the office of NAB chairman and prosecutor general, but Musharraf chose to amend the ordinance his way instead of listening to the orders by then chief justice Irshad Hassan Khan. Therefore, under the NAB ordinance in effect, both top officials have legal as well as constitutional protection. The sources said their removal was possible only in one of the two ways defined in the NAB Ordinance 1999 – Articles 6 and 8 of which state that both the chairman and prosecutor general “shall not be removed from office except on the grounds of removal of a judge of the Supreme Court” – unless the SC showed the government a way to bypass the law and the constitutional protection.
The other way to remove the officials before the completion of their tenure is to coerce them into resigning.
Article 6(b)(i) of the ordinance reads that the “president, in consultation with the leader of opposition, will appoint the [NAB] chairman”. The sources said the protection given to the NAB ordinance under the sixth schedule of the constitution had made the situation even more complex.
According to experts, this means only with the president’s assent could this law be treated as common law, void of constitutional protection, and a simple majority was needed in parliament to amend or repeal it.
Although the SC’s short and detailed orders in the NRO case did not clarify the mist surrounding the procedure to remove the top NAB officials, the court certainly asked the government to appoint new officials to the offices of chairman and prosecutor general in consultation with the chief justice, as per the verdict in the Khan Asfandyar Wali vs Federation of Pakistan case. The verdict of the past – which, constitutional experts claim, carries legal weight – also asks the government to shorten the tenure of the NAB chairman from four to three years, in addition to specifying the qualifications for and obligations to be fulfilled in the nomination of the prosecutor general. The same verdict, however, agrees with the original draft of the NAB ordinance for the removal of both the officials.
According to the sources, the anomaly, therefore, is on two fronts – bypassing the law and the constitution for the removal of the officials and the accommodation of the chief justice’s consultation in the current NAB ordinance.
Law ministry officials said since the NAB chairman had a four-year tenure post and the prosecutor general a three-year tenure post, they could not be removed before the completion of their full tenures if the due course of law was followed.
The sources said the renewed pressure from Chief Justice Iftikhar Muhammad Chaudhry had made the executive anxious, and it wanted the SC to clarify the course of action.
The officials also said that as the law stood today, the NAB chairman had to send a summary to the prime minister for the removal of he prosecutor general with specific reasons/charges. The prime minister, in consultation with the president, would then refer the summary to the Supreme Judicial Council (SJC) for final execution. To remove the NAB chairman, the prime minister – in consultation with the president – could initiate a reference and ask the SJC to decide its merits.
The sources said since there were no charges of misconduct against both the officials, they could not be removed on trumpeted basis. They said had there been any charges against the officials, the government would not have let them work for so long, because “after all, they were appointed during the days of Shaukat Aziz”.
NAB Chairman Naved Ahsen is the first civilian head of the accountability bureau since its establishment in 1999, and served as a bureaucrat before this assignment. A former bureaucrat who has worked with Ahsen in the past said either of the two ways of removal would not bode well for his bureaucratic career.
A top constitutional expert, seeking anonymity, said in the current scenario, the government either had to send a reference against both the officials to the SJC on the basis of misconduct charges or coerce them into resigning. “There’s no other legal way, but since a lot has happened over the last week to defy legal and constitutional merits, the SC may lend a hand to the executive to implement the directives contained in the NRO,” he said.
Senator SM Zafar of the PML-Q agreed that both NAB officials had legal protection and the law was also protected under sixth schedule of the constitution. He said it was up to the court to either review its directive or provide a solution to the government.
Sources close to the judicial hierarchy said as the current judiciary had always been opposed to the establishment of a parallel judicial system and wanted all kinds of cases to be decided through its corridors, it may want to see the repeal of the NAB ordinance in parliament.
A source close to both the Presidency and Prime Minister’s House said, “The laws are very clear, but we are waiting for the Law Ministry to come up with a solution ... we don’t want to come into the foray, knowing that any comment by the Presidency or Prime Minister’s House would be dubbed by a certain media group as another challenge to the judiciary,” he said. “We have utmost regard for the judiciary and would like their guidance in this matter as well.”
Meanwhile, a federal minister, seeking anonymity, said in light of the Charter of Democracy (CoD), the mainstream political parties had already branded NAB “a politically motivated bureau” and sought to replace it with an independent accountability commission. Under the CoD, the commissioner would be nominated by the prime minister in consultation with the leader of opposition, and would stand before a bipartisan parliamentary committee for confirmation of the nomination. He said two parliamentary committees and a constitutional reforms committee were separately working on all these issues, and hoped that opposition parties would facilitate these committees in finishing their work in time and end all these legal and constitutional tussles.
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