ISLAMABAD - Observing that the inquiry before the Supreme Judicial Council is not a spectator sport nor can there be any requirement of proceedings being conducted in an open court, the Supreme Court on Thursday asked the SJC to revisit and decide afresh the question regarding the conduct of proceedings through an open court as requested by two superior courts judges.

The SJC was also asked to decide the question in the light of observations made by the Supreme Court in its judgment and without being influenced by the SJC’s earlier May 5, 2017 order .

“The question regarding conduct of proceedings through an open court as requested by the petitioners needs to be revisited and decided afresh by the SJC notwithstanding and uninfluenced by its Order dated 18.05.2017 in the light of the observations made herein above,” a five-judge larger bench unanimously ruled.

Justice Shaukat Aziz Siddiqui of IHC and Justice M Farrukh Irfan of LHC, against whom the references regarding alleged misconduct are pending adjudication before SJC, had challenged the vires of the provisions of Supreme Judicial Council Procedure of Enquiry 2005, more particularly procedure for scrutinising information and in-camera proceedings. On March 28, a larger bench headed by Justice Sheikh Azmat Saeed had reserved the judgment on the constitution petitions of Justice Siddiqui and Justice Irfan.

A 77-page judgment authored by Justice Saeed observed that if there is a reasonable apprehension that the accused or his lawyers are likely to scandalise the SJC or its members especially with the intention to publicise to hamper the Council from fulfilling its obligations, the Council can always direct that the proceedings before it be conducted in-camera, even if such judge has waived his privilege of in-camera proceedings.

Regarding the contention by one of the counsels of petitioners that the matter be referred to the parliament for framing the law to govern the procedure of the SJC, the top court observed that it is the parliament which created the SJC for accountability of judges.

The top court observed that various countries of the world have chosen either of two paths with regard to accountability of superior court judges which include an open process before a forum outside the judiciary, the Parliament, in the full gaze of the public eye while the other path is of an insulated process by one’s own peers.

“Our Constitutional Dispensation in principle has adopted the latter course of action. The framers of the Constitution of 1973 appear to have made a value judgment that such a course of action is best suited to our societal and cultural ethos, where allegations are routinely made against all and sundry without any qualms about the truthfulness or otherwise of such allegations.”

The proceedings before the SJC are administrative in nature where a judge is judged by his own peers, the judgment stated, adding a conscience effort has been successfully made in the Constitution to insulate this process of accountability from undue influence of subjugation by other two organs of the state, the executive and the legislature.

“In the circumstances, if any such legislation is enacted, more particularly, if by it an attempt is made by the other institution of the state to infiltrate and influence the process under Article 209 of the Constitution in the garb of procedure such a law may be of questionable constitutionality, both with regard to legislative competence and for being violative of the principles of Independence of Judiciary,” it added. The judgment further observed that right of information enshrined under Article 19A and in order to give effect to this Article “Right of Access to Information Act, 2017” has been promulgated but the provisions of the Act need to be looked at very carefully in the context of its applicability to the SJC.

“In the instant case, the embargo to release information with regard to unsubstantiated and unproven allegations against a judge regarding his conduct or capacity is based on the principle not only on protecting the reputation of the judge which may be sullied beyond redemption even if the allegations are finally rejected but also for the protection of the institution of judiciary.”

It further observed that the proceedings that determine civil rights of the parties or the criminal liability of an accused are held in “Open Court”, as justice should not only be done but should also be seen to be done but SJC is a ‘Domestic Tribunal’ and the proceedings before it are essentially administrative in nature.

During the course of proceedings, a counsel for petitioner had objected  Chief Justice IHC Anwar Kasi from being member of the SJC as he himself facing a reference and contended that the power to determine whether a complaint discloses grounds for proceeding under Article 209 of the Constitution has been delegated to a Member of the SJC, which is contrary to the provisions of Article 209 of the Constitution.

“We are afraid that the contentions of the learned counsel are wholly misconceived. No doubt, preliminary spadework may be undertaken by a member of the SJC but the decision to proceed or not to proceed against a judge is in the sole and exclusive domain of the SJC itself and has not been delegated to anybody,” the judgment observed on the contention.

The 77-page judgment also expressed wonder as to why the government filed the two concise statements to contend that the procedure of the SJC can and needs to be regulated through an Act of Parliament when the federal government was not asked to submit its opinion by the Court. 

“It (concise statement) bears stamp and purported signatures of one Muhammad Kamran, Section Officer, Ministry of Law & Justice, Government of Pakistan, Islamabad. It is not clear on whose instructions the said Muhammad Kamran, Section Officer has filed this concise statement purporting or at least attempting to support the petitioners,” the judgement observed.

It added that the security of tenure of those fall under Article 209 of the Constitution is ensured through the Article but it does not mean that those falling within the ambit of Article 209 of the Constitution are secret cows beyond the pale of accountability.

“If a person looses or abandons the necessary attributes of a judge of integrity, probity, legal expertise and mental balance then he is not entitled to any security of tenure and must be weeded out post-haste with surgical precision through due process in terms of Article 209 of the Constitution,” the judgment however observed, adding that such removal is necessary to preserve the independence of judiciary while accountability strengthens rather than weakens institutions.

“An allegation no matter how baseless, if permitted to be made public, such judge and his capacity to dispense justice would be irreparably prejudiced. We cannot lose sight of the fact that the members of the SJC are also the Chief Justice and senior judges of the Supreme Court, the senior most Chief Justices of the High Courts whose reputation too need to be protected from frivolous baseless attacks,” it added.

The aforesaid discussion leads to an irresistible conclusion that the SJC is a unique forum created by the Constitution and it is not a Court but more akin to a Domestic Disciplinary Tribunal whose proceedings are administrative in nature and recommendatory in effect, the judgment further ruled.