An ex-CJ’s standard of justice

For former chief justice of Pakistan (CJP) Mian Saqib Nisar, the principle of the equal dispensation of justice for all and guarding the public money meant everything. In several cases, he ordered government officials to return the public money after declaring their appointments illegal, but this was not the case when it came 70 retired judges of high courts, according to a report.

Justice (R) Saqib Nisar and two other judges out of a five-member bench of the Supreme Court, allowed the retired judges of high courts to retain Rs1.647b despite declaring the judgment through which they were given this hefty amount per 'incuriam (having lack of care)' and void.

In March 2008, when the superior judiciary was in crisis in the Musharraf regime , a three-member bench of PCO judges (Justice Muhammad Nawaz Abbasi, Justice Muhammad Qaim Jan Khan and Justice Muhammad Farrukh Mahmood) passed a judgment.

According to this judgment, a total of 70 high court judges who retired from the 1970s till 2008 and whose service/tenure as a judge of the high court was less than five years should be given pensions from the date of their retirement. This decision cost Rs1.647 billion to the national exchequer. 

The judgment further said that these 70 judges should also be given a monthly pension which at that time was calculated to the tune of Rs32.6 million a month.

Five years later, in April 2013, a five-member bench headed by former chief justice Anwar Zaheer Jamali along with four other judges, Justice Mian Saqib Nisar, Justice Ejaz Afzal Khan, Justice Athar Saeed and Justice Iqbal Hameedur Rehman declared the previous judgment given by Dogar court’s PCO judges void and per incuriam.

Two senior members of the bench Justice (R) Anwar Zaheer Jamali and Justice (R) Ejaz Afzal Khan ordered the government to recover all the money from these retired judges. However, Justice Saqib Nisar and the two other members of the bench with a majority judgment ordered the government not to recover the money. Justice (R) Saqib Nisar wrote in his judgment that recovering the money will be oppressive and prejudicial to the retired judges. 

The bench, however, ordered that their (70 judges) right to receive the pension has ceased and come to an end, rather they are disentitled to receive pension in future.

Senior Advocate Irfan Qadir being Attorney General for Pakistan at that time argued before the court and asserted that judges cannot be made judge of their own cause for the purpose of determining their pensionary benefits.

The report cited Justice (R) Ejaz Afzal Khan as saying that he still remembers this decision because he opposed it along with Justice (R) Anwar Zaheer Jamali.

Justice Ejaz added after the 2013’s judgment, the retired judges again filed a petition in the Supreme Court and the case was fixed before Justice (R) Azmat Saeed Sheikh where the Accountant General for Pakistan conceded before the court and agreed to pay them monthly pensions.

 “It is part of the law that a judge should be entitled to pension only if he meets the criteria of five-year tenure as a judge of the high court. I mentioned the principle of restitution and wrote in the judgment that the amount should be recovered from the judges on the basis of the said principle,” Justice (R) Ejaz Afzal said.

“I remember that the retired judges filed a review petition and the same judges were to hear the petition along with other judges as it was supposed to be a larger bench. A larger bench was constituted, but the case was never listed again. Later the case was fixed in Justice Azmat Saeed Sheikh’s court during Justice (R) Saqib Nisar’s tenure as Chief Justice of Pakistan. I was told that the Accountant General of Pakistan had conceded before the court to release the monthly pension of the retired judges. I believe the government should file a review petition because the accountant general cannot concede against the law especially when it involves huge public money,” Justice Ejaz Afzal remarked.

“I don’t want to comment on who was accommodated through this judgment and why. You cannot enter into a person’s mind to know why he accommodated anyone,” commented Justice (R) Ejaz Afzal.

When contacted, Saqib Nisar said he ‘doesn’t remember’ the details of the judgment but he recalls that he allowed the judges to retain the money that they received from the government in terms of pension.

About his standards, he said there is a difference in illegality and per incuriam. The judges’ pensions in earlier judgment was declared per incuriam by the five-member bench, not illegal. Whereas the references this scribe is quoting particularly, Attaul Haq Qasmi’s appointment were declared illegal. This is the reason I ordered to recover money from him because he was appointed illegally. On the contrary, the judges received the pension amount not through any fraud or forgery but because of an incuriam judgment, commented the former CJ.

When asked the two other judges who were part of the bench have clearly mentioned that the government should recover the pension amount as they could not find any justification of retaining the public money, Justice (R) Saqib Nisar reminded the questioner of the ‘lack of his legal knowledge’ and asked not to embarrass himself or him by asking such questions.

Shehzad Hassan, the Accountant General of Pakistan Revenue said that the information regarding judges’ pensions is a private matter, therefore, he cannot comment on it.  As the AG was reminded that this is a public record as the details of the pensions are publically available through 2013’s judgment, he said he doesn’t know anything about it because he took charge as AG six months ago. 

The report also cited excerpts of the 2013 judgment passed by the five-member bench of the Supreme Court.