ISLAMABAD: The Supreme Court on Thursday put on hold its ruling on an appeal challenging the return of a petition by the court’s secretariat that pertains to a reference on misconduct against former chief justice Mian Saqib Nisar.

The appeal against the registrar office’s decision of not entertaining the petition was taken up by Justice Umar Ata Bandial in his chamber.

Advocate Hina Jilani appeared before Justice Bandial to represent a number of civil society activists namely Afiya Shehrbano Zia, Afrasiab Khattak, M. Ziauddin, Farhatullah Babar, Nighat Said Khan, Farida Shaheed, Rubina Saigol and Bushra Gauhar.

The petitioners believe that they have a legitimate interest in ensuring the systems of judicial accountability through quality of justice — untainted by any shadow of doubts on the credibility of the judiciary as a body.

Apex court puts on hold ruling on appeal against return of petition

After the chamber hearing, Hina Jilani told reporters that Justice Bandial had heard the arguments on the appeal in which they had pleaded that the registrar office could not act as a gatekeeper to block access to justice.

The petitioners through their petition, she explained, had also pleaded before the court to determine which behaviour of a judge should fall within the definition of the misconduct. This will help strengthening the Code of Conduct for the judges by removing certain loopholes blocking the accountability of judges.

The petition has asked the SC to issue a directive to structure the discretion of the Supreme Judicial Council (SJC) which conducts accountability of superior court judges. This structuring should determine the council’s discretion on listing different complaints/references, priority in hearing these complaints and to ensure that the eventual findings of the SJC are made public.

The petition has asked the Supreme Court to issue directives that the Supreme Judicial Council Procedure of Enquiry 2005 be amended.

On Oct 10, 2018, 98 citizens including the petitioners had filed a complaint/reference against the then chief justice Nisar under Article 209 of the Constitution for alleged breach of the judges’ Code of Conduct.

The original petition pleaded that from the time of filing, the petitioners remained in the dark about the status of the reference, but the judge against whom the reference was instituted got retired on Jan 17, 2019.

Subsequently through May 9, 2019 letter under the banner of the Women’s Action Forum, of which some of the petitioners are also members, the petitioners inquired from the registrar about the fate of the reference.

In response, the registrar office informed the petitioners that their reference was disposed of as infuctuous by the council through a decision of March 8, 2019. The reply also stated that under Rule 13 of the Supreme Judicial Council Procedure of Enquiry 2005, the proceedings of the council were conducted in camera and were not open to the public, the petition recalled.

Not satisfied with the reply, the petitioners wrote another letter on June 4 asking when the SJC was aware of the date of retirement of Justice Nisar, why did it neglect to take up the reference in the three months prior to his retirement than taking up the complaint two months after his retirement.

The petitioners also expressed concern on the implications of the SJC’s March 8 order and how this would allow impunity to prevail, if the allegations of misconduct were treated with indifference apparent in the council’s failure to take up the matter before the retirement of the judge.

The petitioners also asserted in their letter that it was unfair and against public interest if the former CJP continued to enjoy handsome privileges by virtue of his former office if finding of misconduct would have disentitled him from such benefits drawn at the expense of the public exchequer.

The petition pleaded before the Supreme Court to declare as illegal and unlawful omission on part of the SJC to duly examine the reference and to render an opinion on the allegations of misconduct.

The petition requested the apex court to set aside March 8 order of the SJC as void ab initio and declare that the reference was still pending before the council, which should be taken up and decided under Article 209 of the Constitution.

The petition argued that the council could not arbitrarily determine the priority it accorded to different references/complaints nor could it arbitrarily determine the requirements of confidentiality without adhering to the applicable law and principles or to the relevant findings of the Supreme Court.

Similarly, the bar on jurisdiction under Article 211 of the Constitution does not apply where the apex court is called upon to decide questions of independence, bias, arbitrariness, impartiality, or failure to exercise jurisdiction by an august forum such as the SJC.

The petitioners has suffered wrong by the March 8 order of the council and therefore were entitled to remedy against that order as a basic norm of justice, the petition insisted.

Published in Dawn, January 10th, 2020