Rules Article 209 does not apply to a person who has retired or resigned from office of a judge of apex court or a high court.

ISLAMABAD   -  The Supreme Court of Pakistan has turned down a petition seeking guidelines to the Supreme Judicial Commission (SJC) that can hold judg­es of superior court accountable.

In this regard, a two-member bench of the apex court issued a six-page order authored by Justice Mu­nib Akhtar who was part of the di­vision bench also including Justice Ijazul Ahsan. The constitutional peti­tion was filed by civil society mem­bers seeking guidelines to the Su­preme Judicial Council (SJC).

In its written judgment, the Su­preme Court has said that Article 209 which deals with the removal of a superior court judge on account of misconduct, does not apply to a per­son who has retired or resigned from the office of a judge of the apex court or a high court.

It added, “On the logic of the prop­osition such a complaint (against al­leged misconduct of a superior court judge) could conceivably be filed even years after the re­tirement or resignation.” Ac­cording to the judgment, “Such an outcome is quite obvious­ly beyond the contemplation of the Constitution. This is yet another reason why the prop­osition postulate cannot be re­garded as correct.” said a six-page order authored by Justice Munib Akhtar.

It said that the Constitution draws a distinction between a person, who, at the relevant time, holds office as a judge and the one, who, having held that office in the past, does not. It said Article 209 applies only to the former and not the latter. It further said, “Thus, e.g., clauses (2) and (3) of Article 202 refer, respectively, to a ‘person who has held office’ ‘as a judge of the Supreme Court or of a High Court’ or ‘as a permanent Judge’.

The verdict said, “In simi­lar vein, Article 182 allows, inter alia, for ‘a person who has held the office of a judge of [the Supreme] Court’ to at­tend sittings of the court as an ad hoc judge, and then goes on to state that “while so attend­ing an ad hoc judge shall have the same power and jurisdic­tion as a judge of the SC”.

It said that other such exam­ples are also to be found. This bolsters the conclusion that Ar­ticle 209 has no application in the postulated situation. Final­ly, it must be noted that if ac­cepted the logic of the proposi­tion could be taken to the point that a complaint could even be filed under Article 209 against a judge who has retired or re­signed after he has left office, in relation to the allegations of misconduct while in office.

It said that this is so be­cause the petitioners advance the proposition on the basis of what they regard to be a matter of principle. If such a principle exists then arguably its appli­cation cannot be limited to the fortuitous circumstance as to whether there was a complaint pending against the allegedly errant judge as on the date he retired or resigned.

It continued, “On the logic of the proposition such a com­plaint could conceivably be filed even years after the retirement or resignation. Such an outcome is quite obviously beyond the contemplation of the Constitu­tion. This is yet another reason why the proposition postulated cannot be regarded as correct.”

The judgment noted that the petitioners asked this court to give directions or guidelines to regulate the case management of the SJC’s docket, a list of cas­es for trial or people having cases pending.

It maintained, “It is our view that, with respect, it would be inappropriate to do so. “First­ly, such directions or guide­lines would either, in terms, be so general or broad as to end up being essentially no more than mere platitudes, or be so detailed and minute as to es­sentially take over the func­tions and powers of the Coun­cil,” said the SC.

The apex court said, “Nei­ther outcome would, for obvi­ous reasons, be desirable. In particular, the latter may be contrary to what is within the jurisdiction of the Court in re­lation to Article 209. Secondly, if some balance can be struck between these two extremes, there would still be a difficulty.”

It said that any directions is­sued or guidelines laid down would of course hold the field over time and therefore and thereby tend to end up providing too rigid and even, eventually, ossified a framework for the SJC.

The SC added that this would be so because it would not be possible for the latter to it­self alter (or even replace) the framework so erected, in order to meet the inevitable changes over time in its docket—both as to the quantum and the nature of the complaints—and other variations in relevant circum­stances. The council would then have to approach the court from time to time to seek further suit­able directions and guidelines, by way of alterations in, or even substitution of, the framework.

It held, “Obviously, such an outcome would not be desirable. The Council ought at all times to have the power to control its own docket and manage its af­fairs in a flexible manner that suits its purposes and allows it to perform the constitutional duties with which it is tasked.” “We are therefore of the view that it would be inadvisable and inappropriate for the court to grant the relief sought,” it said.