Planned appeal in Afiya Shehrbano Zia case: Legal experts urge balance between judicial immunity, accountability

KARACHI: Legal experts say that a revisit of Justice Munib Akhtar’s judgment in the Afiya Shehrbano Zia case could ensure a balance between judicial immunity and accountability but also point out that the powers of the Supreme Judicial Council are restricted to determining whether a sitting judge should be removed from office and reading any further into these powers would be giving it a role not constitutionally assigned to it.

The News reached out to lawyers regarding reports that the federal government is thinking of appealing the 2023 Afiya Shehrbano Zia judgment, which had said that judges who retire or resign do not fall under the SJC’s Article 209 jurisdiction.

“In light of the Afiya Shehrbano Zia case which interprets the relevant constitutional provision -- Article 209 -- neither a retired judge nor one who has resigned nor for that matter one who retires or resigns during the course of SJC proceedings can be proceeded against by the Supreme Judicial Council”, explains lawyer Salaar Khan whose opinion is ratified by other lawyers. Constitutional lawyer Usama Khawar too believes that “under the current legal framework, the Supreme Judicial Council (SJC) cannot proceed against retired or resigned judges.”

But what if the federal government were to challenge the judgment in the Afiya Shehrbano Zia case? And should it?

Khawar says that, while he acknowledges the existing judgment, he “disagrees with its conclusion and reasoning. Resignation should not serve as a shield against accountability, and the Supreme Court’s decision essentially grants a clean chit to resigning judges. It is essential to revisit Justice Munib Akhtar’s judgment in [the] Afiya Shehrbano Zia case to ensure a balance between judicial immunity and accountability. Putting an end to impunity is crucial for upholding the integrity of the judiciary, and the concept of judicial immunity should not lead to judicial impunity.”

It’s not as black and white for others though. Barrister Rida Hosain, for example, points out that “If the intent was that judges who were no longer holding office could be subjected to inquiry by the SJC, the constitution would have expressly granted additional powers to the SJC. It has not. The powers of the SJC are restricted to rendering an opinion that a judge should be removed from office.”

The SJC’s constitutional role could in itself be the answer to these questions. Lawyer Jahanzeb Sukhera explains that the purpose of the council is to “determine, on reference made by the president, or on its own, if any judge is unfit to be a judge – and if it so finds, to recommend to the president to remove such judge. It has no other function beyond that in this regard. Thus, when a person ceases to be a judge owing to retirement or resignation, there remains no occasion for the SJC to proceed against him/her. There is no question of his/her removal anymore.”

Calling the interpretation of Article 209 in the Afiya Shehrbano Zia case, “fairly reasonable”, Salaar Khan says that “one consequence of such a judgment or rather such drafting of the constitution even is that judges whether they resign or retire before or even during [SJC proceedings] can evade accountability as far as the SJC itself goes.”

However, Salaar does point out that “other investigative agencies can inquire into such complaints”. He says that the only difference that changing this interpretation would make is that it would “reduce the incentive for a judge to retire or resign as a means to evade accountability before the SJC -- which again then is linked to removal from office.”

On the Afiya Shehrbano case, Sukhera answers whether the court could have held otherwise by saying that “the law is what the SC says it is. It would not be entirely unheard of if the Supreme Court applied a ‘purposive’ interpretation and held that the spirit of the constitution requires that findings be made against all judges against whom complaints had been received for transparency considerations, or tie the need for such an action with the pensions received by such judges. Of course, the correctness of such a finding would be heavily discussed. At the same time, we can recall engaging in such discussions over other judgments of the Supreme Court.”

Khawar feels the judgment in the Afiya Shehrbano case applies a double standard on judges by first “essentially closing the doors of the accountability of superior courts judges. A judge who resigns before the final removal for corruption or other improper financial enrichment gets to retain all the ill-begotten wealth and also keeps getting financial benefits post-retirement. It is fraud upon the intent of the constitution.”

Then, says Khawar, while “the judgment appears to be correct if solely and strictly considered from the perspective of the text of Article 209(6)”, “it is not consistent with Justice Munib’s own method of statutory interpretation. Justice Munib, in the famous Article 63A judgment read into the text of the constitution the penalty of non-counting of the votes of rebel MPs apart from de-seating from their membership of the legislatures. Justice Munib has applied two different standards and methods for the accountability of judges and parliamentarians.”

Hosain disagrees with this view: “It is wrong to suggest that this mechanism enables judges to go scot free, or immunises them from accountability. If there is evidence of wrongdoing by a judge that has retired or resigned, the relevant law-enforcement authorities should take appropriate action. The only distinction would be the forum where such accountability is to take place. Once a judge resigns or retires, the mandate of the SJC ends and it cannot assume a role not constitutionally assigned to it.” Sukhera agrees that there are other avenues of accountability, adding that a judge’s “resignation will put an end to the SJC proceedings against him but he can still be proceeded against under ordinary criminal law. There is no reason why such a judge should not be prosecuted. If the evidence is there, the law should follow its course.”

There is another consideration in all this as well. Salaar Khan says that “it is not only about the convenience or practicality of it but also what it would take for Article 209 to apply to resigned/retired judges. The Afiya Shehrbano judgment considers the language within the clause as well as other provisions of the constitution that actually do explicitly deal with retired judges as well -- and it does so quite comprehensively. So on the face of it, it’s not just a question of convenience because then you would also be asking: would this not require an amendment to the constitution?”

Salaar answers his question with: “seemingly it would require an amendment to the constitution. And if you were to do that even then the effect of that would just be that accountability as far as removal from the position as a judge and any consequent benefits that flow from that would be affected. it would not in any way take away or add to the investigative powers of other agencies.”

For Sukhera, “there is an argument to be made in support of the relatively opaque accountability process [in the SJC]”. He feels that “since the judicial branch holds neither the executive power of enforcement, nor the purse to disburse money, and “only functions based on the aura of respectability it is cloaked with...it is argued that making a public spectacle of the accountability of judges chips away at this aura of respectability and erodes public confidence in the institution.”