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Friday, March 11, 2011

Zardari Moves to Reappoint Justice ® Deedar Shah, Writes to PM Gilani & Opposition Leader Ch. Nisar

By: Aijaz Ahmed
Justice (R) Deedar Shah
Islamabad: In yet another surprising but clever move, second time in a day, President Asif Ali Zardari has proposed to reappoint Justice (Retd) Syed Deedar Hussain Shah as Chairman, National Accountability Bureau and sought the opinion of the Prime Minister Gilani as Leader of the House and the Opposition Leader in the National Assembly Chaudhry Nisar Ali Khan through two separate letters, which declared a step towards consultative process mandatory for such appointment.

It would be interesting to note that the Supreme Court has declared Deedar Hussain Shah’s appoint as illegal and vide-ab initio on Friday and the detailed judgment in this regard is still awaited citing grounds and reasons in favor of the court verdict.
Spokesperson to the President, Farhatullah Babar, while confirming the move maintained that the opinion of the Opposition Leader in the National Assembly and a PML Hawk, Chaudhry Nisar Ali Khan has been sought through a letter signed by Secretary Malik Asif Hayat on behalf of the President. The letter was also sent to the Prime Minister for forwarding the same to the Opposition Leader.
In his letter to Ch. Nisar, the president observed: “Mr. Justice (Retd) Syed Deedar Hussain Shah is a man of integrity with rich legal background. Thus he was elevated from the bar as a Judge to the Sindh High Court and remained the Chief Justice of the Sindh High Court. He then retired as Judge of the Supreme Court of Pakistan”. ‘In view of his non controversial career, his integrity and non-partisan character, he is a suitable candidate for the appointment as chairman of much talked about organization of NAB’, he added.
While giving the background of the nomination of Syed Deedar Hussain Shah, president also took note of the earlier objections raised by PML-N that he had “political affiliation with the ruling Pakistan Peoples Party”. Taking note of it the President said that Syed Deedar Shah remained Member of Sindh Provincial Assembly long before he was appointed as Judge of the Sindh High Court in 1994. He was appointed as Judge Sindh High Court keeping in view his vast professional experience and unquestionable integrity and subsequently elevated as Judge of the Supreme Court of Pakistan in April, 2000 and served in the apex Court till 2004, the President’s letter said.
Farhatullah Babar said that in order to make the issue crystal clear the President’s letter also quoted the 1996 Supreme Court judgment in Al-Jehad Trust case that settled the issue of political affiliation of a candidate for judgeship and concluded that political affiliation alone might not disqualify a candidate.
The relevant part of the SC judgment in the Al-Jehad Trust case quoted in the latter states: “That the question whether political affiliation of a candidate for judgeship of superior court would disqualify him to be appointed as Judge of High Court, has been examined in depth, and it has been found that political affiliation alone may not disqualify the candidate provided he is a person of unimpeachable integrity having sound knowledge in law and is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. After he is appointed as Judge of the High Court and takes oath to perform is functions without fear, favor or ill-will and decides cases purely on merits, he would be as good as a Judge as any other Judge, who had no political affiliation before assuming the office of a Judge of the High Court.”
The letter to Opposition Leader also draws attention to the Court’s observations in the same judgment at page 511 thus: -“That a person cannot be appointed as a Judge simpliciter for the reason he has political affiliation with a particular political party, but if he is a man of integrity and has sound knowledge of law and is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan, then his past political affiliation will not be a disqualification. A person of integrity and sound knowledge normally severs his past connections with the political party with which he had affiliation and decides the matter purely on merits.”
Farhatullah Babar said that the President’s letter also points out that the former Prime Minister Mian Nawaz Sharif had in 2000 expressed full confidence in Mr. Justice Deedar Hussain Shah and quotes from the historical record.
“It is apparent on record that former Prime Minister, Mian Muhammad Nawaz Sharif filed criminal Petition No.172 of 2000 before the Supreme Court of Pakistan under Article 185(3) read with Article 187-A of the Constitution of the Islamic Republic of Pakistan, 1973, against the order dated 27.06.2000 passed by the Full Bench of High Court of Sindh in Criminal Appeal No.43 of 2000 wherein Mian Muhammad Nawaz Sharif reposed full confidence in the then Chief Justice, Mr. Justice Syed Deedar Hussain Shah”, the letter said.
Thus Mian Muhammad Nawaz Sharif, former Prime Minister of Pakistan, at the most critical juncture of his life reposed the fullest confidence in Mr. Justice Syed Deedar Hussain Shah, the President’s letter said. “Not only this but he has cited the conduct of Justice Syed Deedar Hussain Shah, then Chief Justice of the Sindh High Court, as precedent during the tenure of his successor which is manifestly clear from the petition for leave to appeal under Article 185(3) against order dated 27.06.2000 passed in Cr: Appeal No.43/2000 by Full Bench of High Court of Sindh”, the letter said.
’The Honorable Leader of the Opposition in the National Assembly is requested to kindly consider the proposal of appointment of Mr. Justice (R) Syed Deedar Hussain Shah as Chairman NAB and convey his views in this behalf’, the letter said.
In a separate letter addressed to the Prime Minister, the President said that in terms of Section 6 (b)(i) of the NAB Ordinance, 1999, the consultation with the Leader of the House and the Leader of the Opposition in the National Assembly is a requirement of law for purposes of appointment of Chairman, NAB.
Therefore, consultation with Leader of the House (the Prime Minister of Pakistan) is made to meet the requirement of law, the letter to the Prime Minister also signed by Secretary Asif Hayat said.
 Farhatullah Babar said that relevant provisions of the law laying down qualifications for appointment of Chairman NAB state as under:
“6. (ba)    A person shall not be appointed as Chairman NAB unless he-

(i) is a retired Chief Justice or a Judge of the Supreme Court or a Chief Justice of a High Court; or

(ii) is a retired officer of the Armed Forces of Pakistan equivalent to the rank of a Lieutenant General; or

(iii) is a retired Federal Government Officer in BPS-22 or equivalent.”

Contrarily, the PML-N while giving its reaction maintained that it has no knowledge of any letter of such nature, while the presidency confirms that the latter has been sent at the address of the leader of the opposition at Parliament House.

More interesting would be the reaction of PML (N) particularly after a complete shutter down in favor of Deedar Shah in his native province of Sindh against the Supreme Court decision. The party has no other objection on the person of Deedar Shah, except the previous one, while the Supreme Court has declared his previous appointment vide-ab initio means his appoint will be considered as never had been made, hence leaving room for his reappointment as under the provisions of the NAB Ordinance, the post of Chairman NAB is non-extendable.

On the other hand, PML-N sources are of the view that the party will surely raise some objections and is expected to propose names of Justice Shakir Ullah Jan and Sardar Raza. It may also be mentioned here that a high level judicial personality proposed Justice Khalilurrehman Ramday’s name as Chairman NAB when apex court ordered the government to remove Naveed Ahsan from the post in NRO case December 2009. PML-N, in a bid to support Justice Iftikhar Ch., had favored the appointment of Justice Ramday, who had a close political link with Nawaz Sharif. Ch. Farooq, elder brother of Justice (Retd) Ramday, was advocate General Punjab and then Attorney general who initiated Swiss case against Mohtarma Benazir Bhutto and Asif Ali Zardari without due permission of then federal cabinet. Ch Asad Ur Rehman, former state minister of parliamentary affairs in Nawaz Sharif’s 1999 cabinet is also real brother of Justice Ramday.

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