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Friday May 24 2019

NAB Chairman's removal: a legal conundrum

The grounds, procedure, and forum for the removal of the Chairman of the National Accountability Bureau have been the subject of much debate in recent years, and have particularly garnered interest since Justice (retd) Javed Iqbal’s meeting with journalist Javed Chaudhry (followed by Javed Chaudhry’s columns in Daily Express) and press conference last week.

Given the current legal framework, the two options appear to be proceedings before the Supreme Judicial Council or removal by the President of Pakistan on grounds of either misconduct or incapacity in accordance with the General Clauses Act.

The confusion in this case stems from the way the subject is dealt with in the NAB Ordinance. Section 6 of the law, which relates to the appointment procedure of the NAB Chairman, also provides that the Chairman “shall not be removed except on the grounds of removal of a Judge of the Supreme Court of Pakistan.” Under Pakistani law, the grounds for removal of a SC judge are misconduct (as defined under the code of the conduct for judges of the SC and high courts) or incapacity.

The law, however, is conspicuously silent on the procedure that has to be followed to remove the Chairman, as well as the forum or body that has the power to remove them from office. This omission is highlighted even more when compared with other constitutional or statutory provisions that relate to the removal of heads of constitutional or statutory bodies.

Take, for example, Article 215(2) of the Constitution, which lays down the procedure for the removal of the Chief Election Commissioner and other members of the Election Commission. The provision clearly states that the Commissioner or members of the Election Commission “shall not be removed from office except in the manner prescribed in Article 209 for the removal from office of a Judge…” Similar language can be found in the respective laws regarding the removal of the heads of other statutory bodies, such as the Chairman of the National Commission for Human Rights.

One reason for this omission could be that when originally promulgated in 1999, the NAB Ordinance did not provide for any security of tenure for the Chairman, who was in office only “during the pleasure of the President.” The Supreme Court in the Asfandyar Wali case in 2001 questioned this provision, and directed that, among other things, the NAB Ordinance should be amended to provide that the Chairman, NAB, “shall not be removed from office except on grounds of removal of a Judge of the Supreme Court of Pakistan.” The SC’s direction was verbatim made part of the amended NAB Ordinance in 2001, without much thought going into the procedure for removal. This oversight seems to have persisted even until today.

In the absence of an express procedure or forum laid down under the law, the question is how then can the NAB Chairman be removed?

Since S.6 of the NAB Ordinance refers to grounds of removal of a Supreme Court judge, one answer could be that the body responsible for holding Supreme Court judges accountable - which is the Supreme Judicial Council  - shall also have the power to remove the Chairman of NAB. The SJC rules provide that the procedure prescribed in the rules shall also apply to “proceedings against other office holders who can be removed from office in the manner prescribed by Article 209 of the Constitution.” If this applied to the NAB Chairman, information by “any person” is sufficient to initiate an inquiry against a judge (or in this case, NAB Chairman) for misconduct.

However, it should be stressed that NAB Ordinance does not specify that NAB Chairman shall be removed in the manner prescribed by Article 209 – it only states that the conduct for removal would be that of a SC judge.

Courts too have not provided any clarity on this question. In fact, in the Panama judgment, one of the prayers of the petitioners was that the SC should direct a reference in the SJC against the NAB Chairman. In his judgment, Justice Khosa observed, “initiating proceedings against the Chairman, National Accountability Bureau, under Article 209 of the Constitution may involve some jurisdictional issues…”

Another option that may be considered is provided in the General Clauses Act. Section 16 of the law provides that “where…a power to make any appointment is conferred, then, unless different intention appears, the authority having (for the time being) power to make the appointment shall also have power to suspend or dismiss any person appointed (whether by itself or any other authority) in exercise of that power.” To put it simply, this provision encapsulates the general doctrine that “a power to appoint includes the power to remove.”

According to S.6 of the NAB Ordinance, the appointing authority in the case of the NAB Chairman is the President of Pakistan, which means that the President may be the competent authority to remove Chairman of NAB, but only on grounds for which judges of the Supreme Court can be removed i.e. misconduct or incapacity.

It should also be noted that according to Article 48 of the Constitution, in the exercise of his functions, the President acts on advice of the Prime Minister or the Cabinet, except for matters that the President is empowered under the Constitution, where he may act in his discretion.

As the Government and Opposition are deliberating over reform of the NAB laws, they should consider clarifying the procedure for removal of the NAB head – as the law stands, this omission and consequent confusion could have serious consequences for the independence and accountability of the Chairman, and of the National Accountability Bureau more generally.

Omer is a legal adviser for the International Commission of Jurists. She can be reached at [email protected]

Note: The views expressed are those of the author, and do not necessarily reflect the official policy or position of Geo News or the Jang Group.