As the detailed order in the appeal is awaited and the Supreme Judicial Council (SJC) proceedings against Justice (retd) Mazahir Naqvi come to an end, the petitioners in Afiya Shehrbano Zia & Others have reiterated their reasons for filing the reference, petition, and subsequent appeal, as well as to record the arguments made by their counsel.
In a statement issued on Friday, the petitioners in Afiya Shehrbano Zia & Others stated that, in 2018, in spirit of its historical campaigns for civilian supremacy and against state excesses, members of the Women’s Action Forum (a non-funded lobby and pressure group for women’s rights and civilian democracy), along with other renowned human rights activists and concerned citizens, filed a reference against then Chief Justice of Pakistan, Mian Saqib Nisar, under Article 209 of the Constitution of Pakistan for misconduct, breach of the judges’ code of conduct, and for populist excesses that infringed on the principle of the separation of state powers.
But the plea was declared unmerited in June 2023.
“The judicial reference was signed by a total of 98 citizens who value the role of an independent and accountable judiciary as critical for a more democratic and just society. Many of the signatories have been prominent in the Movement for the Restoration of Democracy in the 1980s and in the Lawyer’s Movement for the Supremacy of the Constitution in 2007. This was a prescient challenge by these citizens for judicial correctives, considering the confusion, coercion, unresolved powers, and excesses that Pakistan’s senior judiciary has incrementally unleashed and itself been subjected to—particularly in the post-Saqib Nisar period,” the statement read.
“For nearly five years, the reference and subsequent follow-up petition by conscientious citizens were ignored, neglected, sidelined, and unsupported by the entire legal community, with the notable exception of their counsel, Hina Jilani, and a few conscionable legal minds. Even large sections of the media, current affairs analysts, and commentators were unwilling to support or report on this cause. In this period, some respected petitioners have even passed away while waiting for an order,” it added.
“The petitioners believe the procedure of the SJC must be reformed and that accountability is important for judicial independence, but selectivity and singling out certain judges by the state through its proxies, using references and proceedings against them, is an abuse of power and process, not a form of impartial and unbiased accountability. The petition must not be permitted to become a ruse for immunity or punitive action masqueraded as accountability,” the statement read.
The appeal by Afiya Shehrbano Zia and others (ICA 2/2024) agitated multiple important constitutional issues before the Supreme Court. During court proceedings, the petitioners' lawyer, Waqqas Mir, raised the question, “Whether the role of the Supreme Judicial Council is limited to the instance where a serving judge of a High Court or the Supreme Court can be removed from office?”
On this issue, the appellants argued that the inquiry by the SJC into the potential misconduct of a judge has value independent of the issue of removal. The prohibition against misconduct attaches to the person of a judge during his service. Merely because the judge resigns or retires does not mean that misconduct during his time as a judge is not inquired into.
The constitutional values that matter are independence of the judiciary and access to justice. Retired Supreme Court judges can come back as adhoc judges within a period of three years. Retired Supreme Court judges can also serve on the ECP and hold other important offices on various tribunals. Retired High Court judges also serve on various tribunals. Inquiry into misconduct even if a judge resigns or retires allows the SJC to have a record of conduct, which can be useful when former judges are considered for appointment to these offices.
The Supreme Court itself has protected the independence of the judiciary and enhanced access to justice through various judgments. These include, but are not limited to, ensuring that judicial officers are not under the control and supervision of the executive and that appointments of superior court judges ensure independence from the executive. The next logical step is internal accountability, which has to be meaningful, and hence the appellants agitated this issue.
“The Supreme Court itself has said that SJC must comply with constitutionally recognized safeguards of fairness and due process. Transparency is an inherent aspect of this. It goes without saying that the discretion available to the SJC is not unbridled—the SJC as a forum has to follow the law laid down by the SC. The appellants believe that transparency in the SJC is a constitutional imperative. There has to be a transparent criteria for taking up complaints, their order of preference, the time within which complaints are decided, and at least a summary of clearly articulated reasons for rejecting a complaint or proceeding with it,” the statement read.
“Constitutional litigation is never about one case that settles all issues. The appellants in ICA 2 of 2024 agitated multiple issues; one of them was decided, and the others remain open for public engagement, critique, and further dialogue between the citizens as well as between the citizens and our courts,” it added.