Govt ICA against verdict barring SJC action maintainable: SC

ISSUE OF RETIRED OR RESIGNED JUDGES

ISLAMABAD  -  The Supreme Court of Pakistan Mon­day held the federal government’s Intra-Court Appeal (ICA) against its judgment barring the Supreme Judi­cial Council (SJC) from taking action against judges who have retired or resigned, maintainable.

A five-member bench of the apex court headed by Justice Amin-ud-Din, and comprising Justice Ja­mal Khan Mandokhail, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, and Justice Irfan Saadat Khan conducted hearing of the ICA regard­ing setting aside of SJC order dated 08.3.2019 in reference against ex-CJP Mian Saqib Nisar.

The federation has prayed to the Court to lay down rules whether the judicial council can continue the ac­tion against judges even after they have tendered their resignations. The government demanded the Su­preme Court to nullify its ruling in the Afiya Sheherbano case.

The Court had directed Attorney General for Pakistan (AGP) Usman Mansoor Awan to frame questions regarding the matter, and submit it Monday. The AGP proposed Makh­doom Ali Khan and Khalid Jawad Khan for appointment as amicus curae in this case.

The AGP argued that the apex court in 1989 had held the petition maintainable regarding the appoint­ment of judges. The President after the approval by the cabinet sends the reference against the judge. The President does not have discretion­ary power to send reference against any judge, he added.

He informed that in Afiya She­herbano’s case neither the Presi­dent nor the federal government was made respondent. Justice Amin questioned on what basis the Court declares this appeal maintainable, as it was filed after time.

The attorney general contended that the SC judgment in Afiya’s case held that the SJC cannot take action against retired judges. The verdict also made it clear that the Supreme Court neither directs nor regulates the Supreme Judicial Council (SJC). He apprised that the federal govern­ment agreed with the SC judgment to the extent that the Supreme Court cannot give direction to the SJC.

Justice Irfan Saadat said some judg­es would directly be effected with this appeal then they should not be issued notice, so that they could de­fend themselves? Is this case relating to two SC judges, who have recently resigned or is of general nature?

Justice Mandokhail said this case is not against any judge, but relat­ed to laying down certain rules. If in the Supreme Judicial Council mis­conduct of a judge is established, then should he not face the legal consequences?

Justice Irfan said when the case will proceed then the Court would not only see what had happened to the pending inquiries, but would also see whether a notice on the complaint against him was issued af­ter or before his/her retirement?

Justice Jamal said that they would have to be very careful as baseless allegations are levelled against the judges on social media. They are tar­geted for deciding cases, adding the judges should not make decisions on the whim, but in accordance with the constitution and law.

Justice Irfan said that many honest judges are black-mailed when they decide the judge as per constitution and law. However, no action is tak­en against those who black-mail the judges, he added. Justice Jamal said this is most difficult case of his life as it pertains to deciding our own fate.

Later, the court deferred the hear­ing of the case till May 19.

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