Some judges bend rules for personal gains

ISLAMABAD: After his retirement, former Chief Justice Federal Shariat Court Agha Rafiq Ahmad Khan took with him his official Mercedes that the government had declined to give him – thanks to a full court order.

The then secretary law Barrister Zafarullah Khan, who was later elevated to special assistant to the PM in the previous PML-N government, had confirmed to The News that the government had declined the CJ FSC’s request for the provision of a Mercedes.

He added that Agha was told that as per a presidential order, he and other judges were allowed a 1,800cc car and could not, therefore, be allowed to have a 2,400cc Mercedes that was in the protocol fleet of the CJ FSC.

Khan said he later learnt that Agha called a full court meeting that decided on the provision of a 2,400cc Mercedes to the CJ FSC and 1,800cc cars to other judges of the court. And when he retired, Agha took with him the Mercedes without the approval of the Government of Pakistan. Zafarullah Khan said that when he was informed about this fact, he took up the matter with the Cabinet Division for the recovery of the Mercedes from the former CJ FSC.

In February 2014, The News had also reported that the then Federal Shariat Court CJ Agha Rafiq Ahmad Khan was drawing both his pension and salary for the office of the CJ FSC at the same time.

Taking notice of The News report on the subject, published on February 18, the AGPR had been spurred into action to solve the riddle of how the CJ FSC was allowed a pension and salary at the same time.

Justice Agha’s ‘Pension Payment Order’ showed him retiring as chief justice FSC on June 4, 2011, when he had completed his two-year tenure which was extended for another three years, ending in June 2014. However, despite the extension, he never took a fresh oath.

In addition to the pension that he started getting after June 4, 2011, Justice Agha was also sanctioned a grant of a lump sum payment of Rs3.2 million as leave encashment -- equal to six month’s salary-- on having completed his ‘first tenure’ as CJ FSC.

When Agha was then approached about his salary and pension benefits, he had told The News that he was not an exception as his predecessor Justice Khairy and another judge Justice Fida had also been getting a pension and salary simultaneously. When he was asked how he could get both pension and salary -- that too of the CJ FSC-- he had said, “Ask those who have authorized the same.”

According to Zafarullah Khan, after his retirement Agha started getting two pensions --one from the FSC and the other from the Sindh High Court. Khan said he moved the case to get one pension stopped but the government’s order was stayed by the Sindh High Court.

Interestingly, former Chief Justice of Pakistan Iftikhar Muhammad Chaudhry had also taken with him his bulletproof Mercedes after retirement, creating a controversy. The government wanted to get back the Mercedes but the issue was taken up before the Islamabad High Court which granted a stay order.

It is said that by then the chief justice was allowed a 1,800cc car but the Nawaz Sharif government, for unexplained reasons, had allowed a 2,400cc Mercedes to the chief justice. As per government policy, judges are allowed to retain such vehicles on depreciated prices upon their retirement.

In another similar case, a few months before his retirement as chief justice of Pakistan, Saqib Nisar got approval for a proposal seeking additional post-retirement benefits for himself from a full court. Later, despite some reluctance from the Law Ministry and the finance division, the federal government also approved the proposal.

The official file of the case, which was sent to the Law Ministry by the then deputy registrar of the Supreme Court (SC), shows that initially there was some resistance to this proposal.

In August 2018, a few days before Imran Khan took over as prime minister (PM), the Law Ministry moved a summary to the PM’s office in which reference was made of the SC’s full court meeting dated July 7, 2018. The summary mentioned that the full court meeting had decided to facilitate the chief justice after retirement and had approved the services of an additional private secretary for him from the budget of the Supreme Court of Pakistan.

Mentioning its concerns, the Law Ministry stated that there was no precedent of a retired federal secretary or BS-22 officer having the facility of an assistant private secretary (BS-16) at the government’s expense. “But the Supreme Court is persistently requesting to take action on the proposed amendment (in presidential order 2 of 1997),” the summary noted.

When the case was referred to the Finance Ministry, its regulation wing also objected to the SC’s proposal. The regulation wing pointed out that the facility of support staff as additional private secretary/ private secretary was possible for serving officers of the rank of joint secretary, additional secretary and secretary but there was no such provision for retired officers.

“The federal government already pays a handsome amount of pension and various facilities to retired judges of the superior judiciary, including the chief justice of Pakistan,” the file of the Finance Ministry said. It added, “after retirement, one has no right to avail the facility/ provision of support staff for private purposes, as this is meant for serving functionaries. In case such a proposal is approved and endorsed, then similar demands would flow from other offices, including constitutional bodies like the Federal Shariat Court, high courts, the auditor general of Pakistan, chairman Senate, National Assembly speaker, NAB chairman etc. and that of the already retired chief justices of the superior judiciary.”

In such a situation, the file added, the federal government would not be able to deny these demands. The section officer concluded that in view of the above note, it was suggested that the Finance Division should not support the proposal.

The file was then taken to the finance secretary, who wrote “speak” on it and returned it to the additional finance secretary (regulation). After they spoke, the Finance Ministry changed its position. The additional finance secretary – who had earlier raised objections - endorsed the proposal. In the file he wrote, “Spoken. It was discussed with FS that since the position of chief justice of Pakistan is a constitutional position and other constitutional positions like the president of Pakistan and governors of provinces have been provided post-retirement facility of private secretary and additional private secretary respectively, we may have no objection to the proposal.”

Accordingly, a draft endorsement was forwarded to the finance secretary, who approved it on September 18, 2018. The very next day, the Finance Ministry conveyed its no objection to the PM Office.

It was Imran Khan’s government which then amended in 2018 the presidential order 2 of 1997 (which deals with the leave, pensions and privileges of apex court judges) to provide an assistant private secretary to Justice Saqib Nisar upon his retirement a few months later.

Besides this additional perk, according to a Finance Ministry document the CJP was already entitled to the following benefits upon retirement: facility to purchase an official car at depreciated value; pension of 85 percent of the salary which was then approximately Rs1,000,000 per month; telephone facilities with up to 3,000 free local calls per month; electricity up to 2,000 units per month; gas up to 25 HM3 units per month; free supply of water; petrol up to 300 litres per month; one driver as well as an orderly or a special additional pension equal to the pay and allowances of a contingent driver and orderly; round-the-clock presence of a security guard at the residence of the retired judge.