Ban on ex-judges' accountability challenged

The federal government has filed an intra-court appeal against the Supreme Court’s verdict barring any misconduct proceedings against retired and former judges.

In its petition, the government has named the Supreme Court registrar and the Supreme Judicial Council (SJC) secretary as respondents and requested the court to set aside the Afiya Shehrbano Zia case verdict.

A civil society activist, Afiya Shehrbano Zia, had filed a complaint against former chief justice of Pakistan (CJ) Mian Saqib Nisar under Article 209 of the Constitution—that deals with misconduct by superior court judges—over alleged breach of the judges’ code of conduct.

However, a division bench of the Supreme Court, comprising Justice Ijazul Ahsan and Justice Munib Akhtar, on June 27, 2023 set aside the complaint, declaring that judges who retire or resign do not fall within the ambit of Article 209.

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The development took place against the background of the resignation of Supreme Court judge Sayyed Mazahar Ali Akbar Naqvi, who relinquished his post on January 10 when the SJC was about to conclude its misconduct proceedings against him.

At the last meeting of the SJC on January 13, Attorney General for Pakistan (AGP) Mansoor Awan had told the council that the government was contemplating filing an appeal against the verdict and the federal govt filed an appeal on Tuesday.

The petition said the SC’s June 27 verdict failed to make a distinction between the consequences upon resignation of a judge under Article 206, retirement under Article 179 and removal under Article 209.

“The judgement has rendered the functionality of the SJC redundant by making Article 209 inapplicable to a judge who has retired or resigned while inquiry proceedings were pending against him and/or a show-cause notice has been issued to him,” it said.

The petition said it is a legal question as to whether the findings in the judgment undermine the principles of transparency, accountability and quality guaranteed under Article 4, 10A and 25 of the Constitution.

“Whether non-issuance of mandatory notice under Order XXVIIA of the Code of Civil Procedure, 1908 to the AGP and Advocate generals of the provinces renders the impugned judgment a nullity,” the petitioner questioned.

The petitioner requested the court to set aside the division bench’s order and allow the SJC to carry on misconduct proceedings against judges who resign during the proceedings.