ISLAMABAD  -  The Supreme Court of Pakistan has held that if the Supreme Judicial Council (SJC) initiates proceedings it shall not be abated if a judge re­signs or retires, and it is the prerogative of the Council to continue with the matter accordingly.

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 Wednesday heard the ICA regarding set­ting aside of SJC order dated 08.3.2019 in the reference against ex-CJP Mian Saqib Nisar.

The bench by the ma­jority of 4-1 partially allowed the appeals of the federation and Sher Bano and said that it is the prerogative of the Council to continue with the proceeding. Justice Hassan Azhar disagreed with the ma­jority decision on the point of limitation as well as merits.

The federation has prayed to the Court to lay down rules whether the 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.

During the hearing, Attorney General for Pakistan (AGP) Usman Mansoor Awan argued that the judicial ac­countability is the sine quo non for ensuring the independence of the judicia­ry, which is the protector of the fundamental rights of the citi­zens. He requested the bench that clause 5 and 6 of Article 209 should be read disjunctive­ly. He while citing the judges’ Code of Conduct, said not every conduct of the judge results in his removal. He said that the in­quiry against the serving judge should be conducted by the peers of the Supreme Court and the High Court judges.

He submitted that a complaint against the former chief justice (Saqib Nisar) was filed before the Council, but it was not taken up during his tenure. After his retirement, the SJC declared that it has become infractuous as the judge is no more holding the po­sition. He emphasized that any complaint against a judge, which relates to the allegations during the time period he was hold­ing the position, must be scru­tinized by the Council, and not outside agency or authority. The SJC must act in transparent man­ner and efficiently.

Justice Musarrat observed that Article 209 does not say that if a judge in the middle of the SJC proceeding resigns then the Council proceedings would be abated. She said a judge might have resigned during the pend­ing of the case in order to avoid the consequence. She further said that if in the inquiry the al­legations are proved against that judge then his resignations should be converted into his re­moval. Justice Musarrat stated that in India in 2011 a female judge of Calcutta High Court was removed on the ground of misconduct, though she had re­signed during the inquiry.

Justice Jamal questioned would the Chief Justice of Pa­kistan, who is chairman of the SJC, be justified for not forward­ing the complaint against him to the Council? He noted hearing of complaint should not be left to the discretion of the CJP.

Waqas Ahmed Mir, the coun­sel Sher Bano, contended that the Council must take up the complaints, which are filed be­fore it, and it should also lay down criteria that if a com­plaint is filed then shall be de­cided in specific period.

He stated that his client was not informed when the com­plaint was marked by the then chief justice to a member of the SJC for his opinion, and what was the opinion given by that judge on the complaint. He raised a question why his client complaint against ex-CJP (Saqib Nisar) was not heard by the SJC during his tenure.

Faisal Siddiqui, who was ap­point amicus, submitted that this case will have far reach­ing effect on the independence of the judiciary. He said in Sher Bano case the federation was not made party, attorney gen­eral was not issued notice un­der Order 27 of the Supreme Court Rules, 1980, and show-cause was also not issued to the judge (Saqib).