fatman17
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Asif Ezdi
The writer is a former member of the Pakistan Foreign Service.
In most countries, the appointment of the head of the national anti-corruption agency would hardly be headline-grabbing news. But Pakistan is no ordinary country. It boasts a president who could easily have rub shoulders with known world-class kleptocrats like Marcos, Mobutu and Suharto. A rich land-owning prime minister who has not been paying any income tax for years and who thinks nothing of obtaining loan write-offs to enrich oneself; a cabinet with ministers either convicted or accused of massive corruption; and a parliament that is teeming with loan-defaulters, tax-cheats, holders of fake degrees, electricity thieves and other looters of public money.
No wonder the governments policies have been geared first and foremost to protecting Zardari and his cronies from the judicial process for alleged graft. The entire state machinery is being abused for this purpose. Not even a sinking economy, devastating floods and rampant terrorism have deflected the government from this overriding priority. Zardari s appointment of Deedar, a PPP-loyalist who at one time defended Zardari in corruption cases, as NAB chairman is clearly yet another attempt to save himself from accountability.
Babar Awan, another lawyer once hired by Zardari to defend him in the courts who now doubles as the countrys law minister, has tried to justify Deedars appointment on two main grounds: first, that even Nawaz Sharif had expressed confidence in Deedars fairness in the hijacking case; and second that the appointment has been made in accordance with the NAB Ordinance. Both these grounds are invalid.
Even if Deedars integrity had not been questioned, which is not the case, hardly any one can deny that there are serious doubts about his neutrality. There can be no better evidence of his unsuitability for the post than the fact that even Gilani tried to dissociate himself from Deedars appointment when he first spoke to the media on this subject, saying in effect that it was Zardaris decision, not his own.
In defending this decision, Babar has cited Section 6 (2) (i) of the National Accountability Ordinance, 1999, which says that the NAB chairman is to be appointed by the president in consultation with the Leader of the House. But Deedars appointment cannot even be said to meet the stipulations of this section, which lays down two conditions. Firstly, there must be consultation with the leader of the opposition. Secondly, this consultation must be held by the president.
Whether the first condition was fulfilled is at least highly debatable in light of the decision of the Supreme Court in the Al-Jihad Trust case (1996) that the process of consultation must be meaningful and consensus-oriented. True, that case concerned appointments to the superior judiciary and this ruling is not directly applicable to other posts. Therefore, the question whether this interpretation is also valid for the appointment of the NAB chairman will have to be decided eventually by the courts. But unless and until they rule otherwise, it is the only yardstick to go by. In seeking to justify Deedars appointment, one of our brightest journalists, the editor of a Lahore weekly, has said that under the definition given in Article 260 of the constitution, consultation is not binding on the president. He would have had a point, were it not for the fact that this particular definition was deleted under the Eighteenth Amendment.
The second condition under Section 6 (2) (i) - that the consultation should be held by the president - was clearly not met. It was Gilani not Zardari who contacted Nisar. Gilani claims to have done so on behalf of Zardari. But just as the president cannot delegate to anyone else the power to give assent to a bill passed by parliament, he cannot delegate the function of consultation.
Zardaris failure to contact Nisar directly is however an omission that can be easily rectified. The more important point is that there must be genuine consultation. In addition, the Supreme Court has pointed to its judgements in the NRO case (December 2009) and the Asfandyar Wali case (2001), holding that the post of NAB chairman has to be filled in consultation with the chief justice.
More worrying than the failure of the government to have proper consultations before appointing the NAB chairman are statements by Gilani, our newly empowered prime minister, suggesting that even after the Eighteenth Amendment, the president continues to retain extensive discretionary powers on which he is not required to seek or follow the prime ministers advice. This is an issue much bigger than that of the NAB chairmans appointment because it raises questions about the true nature of our parliamentary system.
Gilani expressed this bizarre view in several remarks he has made in the past few days. First, he said on October 9 that after Nisar had twice rejected the names proposed by Zardari for the NAB chairman, Zardari had used his constitutional and discretionary power to appoint Deedar. Two days later, on October 11, Gilani said that Zardari had made the appointment in accordance with law and in exercise of his discretionary powers. Then on October 12 Gilani said that the appointment of NAB chairman was an administrative matter, not a constitutional issue. The president was not therefore bound to consult anyone before taking a decision.
In his remarks on October 11, Gilani also disclosed that it was none other than Raza Rabbani, the principal author of the Eighteenth Amendment which was supposed to herald a truly parliamentary system of government, who had advised him that the president was bound by the prime ministers advice only when exercising his constitutional functions. Since the appointment of the NAB chairman was not a constitutional function, Gilani said, the president was free to exercise his discretion in making the appointment.
This distinction between the constitutional functions of the president and other so-called administrative matters is completely new and unprecedented. It finds no place in the constitution and has been invented by Rabbani and the government only to justify Deedars appointment and to enhance Zardaris powers. Article 48 (1) is quite clear. It states categorically that in the exercise of his functions, the president shall act on and in accordance with the advice of the cabinet or the prime minister. There is nothing in this Article or elsewhere in the constitution to warrant the interpretation that this requirement is only applicable to the presidents constitutional functions or that he has discretionary powers when exercising his other functions. This is also evident from paragraph (2) of this Article which states that the president can act in his discretion only when he is empowered by the constitution to do so. This power cannot therefore be given to him under an ordinary law.
It follows from Article 48 that if there is any law, such as the NAB Ordinance, which gives any powers to the president beyond those given by the constitution, he can only exercise them in conformity with the constitution, i.e. on and in accordance with the advice of the cabinet or the prime minister. Deedars appointment, which according to Gilani was made by Zardari without the prime ministers advice in exercise of the presidents discretionary powers, is therefore not only illegal but also unconstitutional.
Gilani also made another goof-up when he said on October 9 that he had not given any advice to Zardari on the appointment of the NAB chairman, because if he had, it would have become binding on Zardari. Gilanis remarks betray not only an attempt to run away from his responsibilities as prime minister but also that he has not read (or understood) the Eighteenth Amendment. If he had, he would have known that under the amended Article 48, with very few exceptions the president can now only exercise his powers on the advice of the prime minister or the cabinet. The word on existed under the original 1973 constitution but was deleted by Zia. Its restoration under the Eighteenth Amendment means that the president cannot act on his own but only when advised by the prime minister or the cabinet.
Email: asifezdi@yahoo.com
Asif Ezdi
The writer is a former member of the Pakistan Foreign Service.
In most countries, the appointment of the head of the national anti-corruption agency would hardly be headline-grabbing news. But Pakistan is no ordinary country. It boasts a president who could easily have rub shoulders with known world-class kleptocrats like Marcos, Mobutu and Suharto. A rich land-owning prime minister who has not been paying any income tax for years and who thinks nothing of obtaining loan write-offs to enrich oneself; a cabinet with ministers either convicted or accused of massive corruption; and a parliament that is teeming with loan-defaulters, tax-cheats, holders of fake degrees, electricity thieves and other looters of public money.
No wonder the governments policies have been geared first and foremost to protecting Zardari and his cronies from the judicial process for alleged graft. The entire state machinery is being abused for this purpose. Not even a sinking economy, devastating floods and rampant terrorism have deflected the government from this overriding priority. Zardari s appointment of Deedar, a PPP-loyalist who at one time defended Zardari in corruption cases, as NAB chairman is clearly yet another attempt to save himself from accountability.
Babar Awan, another lawyer once hired by Zardari to defend him in the courts who now doubles as the countrys law minister, has tried to justify Deedars appointment on two main grounds: first, that even Nawaz Sharif had expressed confidence in Deedars fairness in the hijacking case; and second that the appointment has been made in accordance with the NAB Ordinance. Both these grounds are invalid.
Even if Deedars integrity had not been questioned, which is not the case, hardly any one can deny that there are serious doubts about his neutrality. There can be no better evidence of his unsuitability for the post than the fact that even Gilani tried to dissociate himself from Deedars appointment when he first spoke to the media on this subject, saying in effect that it was Zardaris decision, not his own.
In defending this decision, Babar has cited Section 6 (2) (i) of the National Accountability Ordinance, 1999, which says that the NAB chairman is to be appointed by the president in consultation with the Leader of the House. But Deedars appointment cannot even be said to meet the stipulations of this section, which lays down two conditions. Firstly, there must be consultation with the leader of the opposition. Secondly, this consultation must be held by the president.
Whether the first condition was fulfilled is at least highly debatable in light of the decision of the Supreme Court in the Al-Jihad Trust case (1996) that the process of consultation must be meaningful and consensus-oriented. True, that case concerned appointments to the superior judiciary and this ruling is not directly applicable to other posts. Therefore, the question whether this interpretation is also valid for the appointment of the NAB chairman will have to be decided eventually by the courts. But unless and until they rule otherwise, it is the only yardstick to go by. In seeking to justify Deedars appointment, one of our brightest journalists, the editor of a Lahore weekly, has said that under the definition given in Article 260 of the constitution, consultation is not binding on the president. He would have had a point, were it not for the fact that this particular definition was deleted under the Eighteenth Amendment.
The second condition under Section 6 (2) (i) - that the consultation should be held by the president - was clearly not met. It was Gilani not Zardari who contacted Nisar. Gilani claims to have done so on behalf of Zardari. But just as the president cannot delegate to anyone else the power to give assent to a bill passed by parliament, he cannot delegate the function of consultation.
Zardaris failure to contact Nisar directly is however an omission that can be easily rectified. The more important point is that there must be genuine consultation. In addition, the Supreme Court has pointed to its judgements in the NRO case (December 2009) and the Asfandyar Wali case (2001), holding that the post of NAB chairman has to be filled in consultation with the chief justice.
More worrying than the failure of the government to have proper consultations before appointing the NAB chairman are statements by Gilani, our newly empowered prime minister, suggesting that even after the Eighteenth Amendment, the president continues to retain extensive discretionary powers on which he is not required to seek or follow the prime ministers advice. This is an issue much bigger than that of the NAB chairmans appointment because it raises questions about the true nature of our parliamentary system.
Gilani expressed this bizarre view in several remarks he has made in the past few days. First, he said on October 9 that after Nisar had twice rejected the names proposed by Zardari for the NAB chairman, Zardari had used his constitutional and discretionary power to appoint Deedar. Two days later, on October 11, Gilani said that Zardari had made the appointment in accordance with law and in exercise of his discretionary powers. Then on October 12 Gilani said that the appointment of NAB chairman was an administrative matter, not a constitutional issue. The president was not therefore bound to consult anyone before taking a decision.
In his remarks on October 11, Gilani also disclosed that it was none other than Raza Rabbani, the principal author of the Eighteenth Amendment which was supposed to herald a truly parliamentary system of government, who had advised him that the president was bound by the prime ministers advice only when exercising his constitutional functions. Since the appointment of the NAB chairman was not a constitutional function, Gilani said, the president was free to exercise his discretion in making the appointment.
This distinction between the constitutional functions of the president and other so-called administrative matters is completely new and unprecedented. It finds no place in the constitution and has been invented by Rabbani and the government only to justify Deedars appointment and to enhance Zardaris powers. Article 48 (1) is quite clear. It states categorically that in the exercise of his functions, the president shall act on and in accordance with the advice of the cabinet or the prime minister. There is nothing in this Article or elsewhere in the constitution to warrant the interpretation that this requirement is only applicable to the presidents constitutional functions or that he has discretionary powers when exercising his other functions. This is also evident from paragraph (2) of this Article which states that the president can act in his discretion only when he is empowered by the constitution to do so. This power cannot therefore be given to him under an ordinary law.
It follows from Article 48 that if there is any law, such as the NAB Ordinance, which gives any powers to the president beyond those given by the constitution, he can only exercise them in conformity with the constitution, i.e. on and in accordance with the advice of the cabinet or the prime minister. Deedars appointment, which according to Gilani was made by Zardari without the prime ministers advice in exercise of the presidents discretionary powers, is therefore not only illegal but also unconstitutional.
Gilani also made another goof-up when he said on October 9 that he had not given any advice to Zardari on the appointment of the NAB chairman, because if he had, it would have become binding on Zardari. Gilanis remarks betray not only an attempt to run away from his responsibilities as prime minister but also that he has not read (or understood) the Eighteenth Amendment. If he had, he would have known that under the amended Article 48, with very few exceptions the president can now only exercise his powers on the advice of the prime minister or the cabinet. The word on existed under the original 1973 constitution but was deleted by Zia. Its restoration under the Eighteenth Amendment means that the president cannot act on his own but only when advised by the prime minister or the cabinet.
Email: asifezdi@yahoo.com
