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).