ISLAMABAD: The Supreme Court on Monday declared as maintainable the caretaker federal government’s appeal against its judgement in Afiya Shehrbano Zia’s case, holding that judges who retire or resign do not fall within the ambit of Article 209 of the Constitution that determines misconduct of judges of the superior courts.
A five-member larger bench of the apex court headed by Justice Aminuddin Khan and comprising Justice Jamal Khan Mandokhail, Justice Hassan Azhar Rizvi, Justice Musarat Hilali and Justice Irfan Saadat Khan heard the intra-court appeal (ICA) the government.
The court after declaring the ICA as admissible decided to appoint amici curiae to assist it in the matter.
The Federation through the Ministry of Law and Justice secretary filed the ICA under Section 5 of the Supreme Court (Practice and Procedure) Act 2023 read with Article 184(3) of the Constitution against the judgement dated June 27, 2023 delivered in Afiya Shehrbano case.
The government prayed to the court to set aside the judgement. It was also prayed to hold that a judge against whom proceedings are initiated under Article 209 ought to be proceeded against and his resignation would not result in abatement of such proceedings.
It is pertinent to mention here that the need for challenging the judgement of Afiya Shehrbano case propped up last week after the resignation of Justice Mazahar Ali Akbar Naqvi when the Supreme Judicial Council (SJC) was proceeding against the judge on misconduct complaints filed by lawyers and Pakistan Bar Council.
On Monday, during the course of hearing, Justice Mandokhail remarked that a judge should resign from his position in a transparent manner beyond any doubt, adding that no judge would want to retire under the shadow of ignominy.
A complaint is filed against a judge by making baseless accusations and then it is uploaded on social media to defame him, Justice Mandokhail remarked, adding that once a complaint is filed against a judge in the SJC, there should be a report from the council that if the allegations are not true then the matter is closed.
Justice Rizvi observed that blackmailers file complaints against many honest judges on their decisions, spoiling their reputation but no action is taken against them.
Attorney General (AG) Mansoor Usman Awan submitted before the court that it is important for the judiciary that a judge should retire in a dignified manner, adding that no judge should go home with ignominy.
He further submitted that transparency requires that if a complaint against the judge is pending in the SJC, the action is valid despite the retirement or resignation.
To a court query, the AG submitted that if the allegations against the judge are proved, then apart from pension and other financial benefits, criminal action may also be taken against him.
During the hearing, the AG cited MD Tahir case saying that in the 1989, the Supreme Court while dealing with an appeal regarding judge’s appointments held the matter as admissible despite the fact that it was time barred.
To another question, the AG submitted that a two-member bench interpreted Article 209(1) and declared that if a judge retires or resigns, no action can be taken against him in the SJC. He, however, contended that without issuing notices to the AG and Federation, Article 209(1) was interpreted.
He submitted that the interim government agrees with the observation of the Aafia Shehrbano case that the court cannot give any guidelines to the SJC or regulate its proceedings.
“But the ongoing proceedings of the Council cannot be terminated on the basis that the judge has retired or resigned,” the AG said, adding that this is not a problem of judges’ pension but a matter of public trust, transparency and accountability as well.
Justice Irfan Saadat Khan observed that there are some judges who would be directly affected by this appeal and asked as to whether they should not be given notice.
“Shouldn’t these two judges be given the right to defend themselves?” the judge further questioned. Justice Hilali asked the AG as to whether the ICA is related to the two recently resigned judges or it is also for the future?
Justice Mandokhail observed that the present case is not against any judge but relates to a principle. “What will be the legal consequences if a misconduct is proved against a judge in the SJC,” he questioned, adding that judges did not come from the sky but there are some reasons behind the constitutional protections they have.
The judge observed that the intention of Parliament should be looked at carefully, adding that Parliament has made legislation keeping in mind the independence of the judiciary regarding the judges.
Justice Irfan observed that when the case would be heard, they would not only see the pending inquiries against the judges, they would also see if the complaint against the judge came to the council; and if no notice is taken, what will happen after retirement or resignation.
Justice Mandokhail said that judges are criticised for making decisions, judges do not decide according to anyone’s wishes, judges are very careful while making decisions.
Justice Aminuddin said that at this time they are looking at one aspect of the matter, adding that amici curiae should be appointed to assist the court on every aspect.
The AG submitted that Makhdoom Ali Khan, Khalid Javed Khan could be appointed as amici curiae. Justice Irfan said that Khawaja Haris can also be appointed as amicus curiae. The AG replied that Haris was a counsel in the SJC for a party in the case.
At this, Justice Irfan said that Makhdoom Ali Khan is also a party in this case. The AG replied he could not notice it.
Later, the court decided to appoint amici curiae for assisting it and asked the AG to suggest more names as well. The court directed the AG to formulate legal questions and submit them, and adjourned the hearing till February 19.