NAB chairman selection: New ordinance silent on way out over PM, opposition leader deadlock, MPs panel impasse

ISLAMABAD: Both the presidential ordinances, promulgated in a span of 25 days, are silent on the way out if even the proposed parliamentary committee fails to select a nominee from amongst the list comprising the recommendations of the prime minister and leader of the opposition for the office of the National Accountability Bureau (NAB) chairman.

When contacted, renowned constitutional expert, Pakistan Tehreek-e-Insaf (PTI) Senator Syed Ali Zafar and former president of the Supreme Court Bar Association (SCBA) told The News that the new amendments in the NAB law offered no solution if there was a deadlock between the premier and the opposition leader and then in the parliamentary committee.

“The president would serve just like a post office in the appointment of the NAB chairman, having no powers. First, the prime minister and opposition leader and then the parliamentary panel would have the real role in the selection of the NAB chief,” he opined.

Another prominent lawyer and former SCBA president Senator Kamran Murtaza agreed with the opinion that the recent amendments provided no answer if there was a gridlock between the premier and the opposition leader as well as in the parliamentary forum. “In case a blind alley materialises, the possibility is that the matter would go to a superior court, which can say that it can’t make the appointment and the legal procedure should be followed till a way out was found. The failure of the Executive will invite the intervention of the third party – the court.”

He said that in the prevalent parliamentary system, the involvement of the president in such matters amounts to giving him the role of more than a post office. “The president, who is just a figurehead, will be acting above the prime minister and the cabinet and overstepping what has been provided in the Constitution.”

To a question, Kamran Murtaza said that admitted that the president was a part of the Parliament but he has his role clearly defined in the “mother document”. Another contradiction, the lawyer said, is that while the president is supposed to be nonpartisan and “above” the premier and the opposition leader, he would downgrade his position when he would be holding consultations with them for the nomination of the NAB chairman.

Given the kind of relations the two consultees – the premier and opposition leader – have, they are unlikely to have consensus on any aspirant. The lack of cooperation between them is proved by their track record as they keep fighting on key appointments, complicating the process of nominations.

The parliamentary committee, having equal representation of the government and opposition, is also expected to face a deadlock for this reason.

A situation akin to an eventuality that emerges in case of the selection of the chief election commissioner and Election Commission of Pakistan (ECP) members, when a similar parliamentary committee with equal numbers of the government and opposition is unable to pick up any nominees for the positions, will crop up.

Since an identical parliamentary committee for appointments in the superior judiciary is not as powerful as these two forums are, the judicial nominations do not encounter an impasse and a method for these clearance has been spelt out in the Constitution.

The Constitution also provides a solution to name the caretaker prime minister if the concerned parliamentary panel fails to reach a decision. In that case, the ECP comes into play and its decision is final. But there is no such mechanism available for the choice of the NAB chairman, the CEC and ECP members when a disagreement hits the parliamentary forums.

The October 6 amendment about the appointment of the NAB chairman says there will be a NAB chief to be appointed by the president in consultations with the leaders of the house and opposition in the National Assembly. If there is no consensus on anybody between the two, the names proposed by them separately will be forwarded by the president to a parliamentary committee, which may confirm any one of them for the slot. The committee will be constituted by the National Assembly Speaker, comprising 50% members each from the treasury and opposition benches, based on their strength in Parliament, to be nominated by the respective parliamentary leaders. The total strength of the committee will be 12 members out of which one third will be from the Senate. If the National Assembly is dissolved at the material time, all the members of the committee will be from the Senate.

The president’s role is just to receive the names proposed by the prime minister and forward them to the opposition leader to get his view. If the opposition leader agrees to any of the recommendations made by the premier, the matter will be settled and closed. But if he rejects these names, he will suggest his own nominees. In that case, these proposals will be sent to the parliamentary committee. If the panel arrives at an agreement on any name, the issue will come to an end and the new chairman will be named. But if the committee is hit by the deadlock, the new ordinance doesn’t provide any answer.

The only difference between the procedures for the nomination of the NAB head following the present ordinance and the law prevailing before that is that the new law has added the forum of the parliamentary committee that will be involved only when the prime minister and opposition leader are unable to reach an accord on any name. The president’s sole function now and before is to issue the notification of the appointment of the NAB chief as he does in the case of the CEC and ECP members but possesses no powers in these nominations.

When last time the NAB chairman was nominated in 2017, the then prime minister [Shahid Khaqan Abbasi) and leader of the opposition (Syed Khurshid Shah) had effortlessly hammered out a consensus on retired Justice Javed Iqbal. After this unanimity, the then president (Mamnoon Hussain) had only notified their decision. Similarly, the incumbent CEC had been unanimously picked up through informal contacts and consultations by Imran Khan and Shehbaz Sharif

It is the first time since 1999 when the NAB law was promulgated that a president (Arif Alvi) has made it public to write a letter to the prime minister (Imran Khan) asking him to propose names for the NAB chairman.