The members of civil society Afiya Shehrbano Zia, Afrasiab Khattak, Muhammad Ziauddin, Farhatullah Babar, Nighat Said Khan, Farida Shaheed, Rubina Saigol and Bushra Gauhar and 90 others on 10th October, 2018, had filed a reference against former Justice Saqib Nisar under Article 209 of the Constitution for breach of the judges' code of conduct.
They have filed the petition under Article 184(3) of Constitution and made President through principle secretary, Supreme Judicial Council through its secretary, registrar Supreme Court, and former Justice Mian Saqib Nisar as respondents.
The petitioners submitted that from the time of filing the reference, they remained in the dark about its status. The ex-CJP against whom the reference was filed retired on 17.1.2019. They stated that on 9.05.2019 they wrote a letter to the registrar SC who is also the secretary SJC under the banner of the Women's Action Forum (WAF) to enquire about the fate of their reference. He responded through letter dated 22.5.2019 that the said reference was disposed of as infructuous by the Council vide its order dated 8.3.2019.
The petitioners stated that the reference was filed against ex-CJP Saqib on 10.10.18, while he held office until 17.1.2019. They raised question even though the Council was aware of Justice Saqib Nisar's retirement then why it neglected to take up the reference three months prior to his retirement and only took it up two months after his retirement.
"Whether the reference against Justice Saqib is deemed to have become infructuous after his retirement as presumed by the Council in its Order dated 8.3.2019? Whether it is unlawful to let lapse of time to enable a judge against whom a reference is pending to retire with post-retirement benefits? Whether lack of due diligence by the Council in performance of 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 of prioritizing pending matters?" they asked.
The petitioners argued in their letter dated 4-6-19 that it was unfair and against public interest if the former CJP continues to enjoy handsome perquisites and privileges by virtue of his former office if a finding of misconduct would have disentitled him from such benefits drawn at the expense of the public exchequer.
They also argued that the Council is bound to make a clear determination in case any allegations of misconduct against a judge are pending examination before it and that, "It (SJC) ought not to avoid its duty to hold inquiry and withhold its opinion as to whether misconduct was committed or not merely because the judge in question happens to have retired."
They further emphasized in the letter, "Irrespective of the former CJP's retirement, the public (and serving and future judges) are entitled to know whether the various acts committed by him specified in our reference, constituted misconduct or not." They objected to the abovementioned order of the Council on the ground that "Judges cannot be given an effective carte blanche for any acts of misconduct committed close to retirement."
The petitioners stated that to this day they have received no response from the SC registrar or the Council to their letter and to the points raised by them. They mentioned that two references filed against Justice Qazi Faez Isa were taken up by the Council within a month of their filing whereas their complaint against former Justice Saqib Nisar was not even taken up by the Council for more than six months and only took up after he retired.
The petitioners maintained that their complaint was dismissed by the Council without informing them much less provision of a copy of the Council's order.