In response to the federal government’s intent to file an appeal before the Supreme Court against its 2023 Afiya Shehrbano Zia judgment, which held that judges who retire or resign do not fall within the ambit of Article 209 of the Constitution that determines misconduct of apex court judges, the petitioners in Afiya Shehrbano Zia & others have stated that they are committed to pursuing their case in good faith but not to serve the government’s seemingly more parochial interests in leveraging the petition as punitive or coercive.
The government’s decision to revisit the arguments for judicial accountability in the petition is quite obviously in connection to the reference against Justice Mazahir Ali Naqvi, who resigned on January 9, 2024, while it was pending. The resignation was accepted by the President of Pakistan on January 11, 2024, which rendered Naqvi retired.
In a statement issued on Wednesday, the petitioners, including Afiya Shehrbano Zia, Senator Afrasiab Khattak, Bushra Gohar, Senator Farhatullah Babar, Farida Shaheed, and Nighat Said Khan, said that the government may hold special interest in pursuing the Naqvi reference for political ends, but the petitioners of Afiya Shehrbano Zia & Others 2020 hold grievances and objectives that pertain to the larger issues of judicial accountability, independence, separation of state powers, and a justice system that serves civilian and democratic ends, not just state interests.
In other words, the petitioners in Afiya Shehrbano Zia & Others are committed to pursuing their case in good faith but not to serve the government’s seemingly more parochial interests in leveraging the petition as punitive or coercive, the statement read.
The historical context to the Afiya Shehrbano Zia & Others’ Petition, and the federal government’s intent to appeal the Order that found the plea “unmerited” in June 2023, is as follows: 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.
“This 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 said.
“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,” the statement read.
In a statement issued on Wednesday, the petitioners stated that the revival of the petition in public discourse is welcome. The petitioners believe the procedure of the SJC must be reformed and wish to reiterate the premise of the original plea, which raised the following principle questions:.
“Whether the Honorable Supreme Judicial Council (the Council) follows reasonable and rational criteria regarding the priority of taking up matters referred to the Council and whether there are any circumstances that merit taking up a matter out of turn?
“Whether the Supreme Judicial Council Procedure of Enquiry 2005 (the Procedure) constitutes a valid procedure in that it is silent as to criteria governing the order of taking up pending matters?”
“Whether the Council needs to be more fully guided by the Procedure regarding the hearing of a reference filed against a judge before the date of retirement of such a judge so that judicial honor is preserved or public interest is fully served?”
“Whether the Council is not required to decide each and every matter that is filed before it and whether it is unlawful to let lapse of time enable a judge against whom a reference is pending to retire with post-retirement benefits?”
“Whether lack of due diligence by the Council in performing functions vested in it under Article 209 of the Constitution has led to the adoption of processes that give rise to perceptions of arbitrariness and bias on the part of this Honorable Forum in the order of taking up or prioritizing pending matters?”
"Whether the public interest and the interest of justice have been harmed by the failure of the Council to examine a pending complaint against a judge while he is still holding office and allowing an escape from accountability for alleged acts of misconduct owing to his retirement from office?”
“Whether the fundamental right of a complainant in a matter before the Council, and that of all other citizens, to access to justice, that is inherent and interwoven in every article of Part II of the Constitution, is not violated when failure of effective implementation of Article 209 undermines the principles of impartiality and independence of the judiciary?”
“Whether the Petitioners as signatories to the Reference were not denied their right to information by the Council and its functionaries when they were given no information regarding the above-mentioned order till more than two months after the order and that too on the Petitioners’ query regarding the fate of the Reference?”
“Whether the procedure does not protect the confidentiality of the eventual findings of the Council, and the same are to be communicated (at the very least) to the complainant, and the council or its functionaries cannot arbitrarily decide which of its findings to publicly disclose and which to conceal?”
"Whether members of the council against whom matters are pending should sit in the council before the matters against them have been decided and whether any proceedings of that forum are carried out with the participation of a chief justice of Pakistan or any other honorable judge against whom proceedings are pending remain vulnerable to challenge on grounds that would make such proceedings coram non judice?”
“Whether the bar of jurisdiction contained in Article 211 can apply where the very constitution, competence, and procedure of the council are in question and where this honorable court is called upon to decide questions of independence, bias, arbitrariness, impartiality, and failure to exercise jurisdiction by an august forum such as the council?”
“Whether this petition does not involve the fundamental rights of the entire population of Pakistan since the very enforcement of those rights takes place through the judicial system, and whether the public importance of this petition is not self-evident?”
“The petitioners believe that accountability is important for judicial independence, but selectivity and singling out of 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 said.
“After exhausting the legal process, in August 2020, members of WAF and other citizens, which include the petitioners, also extended their demand for accountability by filing Right to Information requests regarding the perks, privileges, assets, and post-retirement benefits of judges of the High Court and Supreme Court, which have also been subject to delays, opaqueness, and objections by the Supreme Court Registrar. All state institutions must respond to the expectation of the Pakistani citizen for basic information about institutional privilege and procedures of accountability of public officials and clarify what recourse applies when these institutions remain immune to such checks,” it read.