Five-member Supreme Court bench told: Judges are immune from proceedings against them under normal laws

ISLAMABAD: The Supreme Court was told that the judges are immune from proceedings against them under normal laws as long as they hold the position.

A five-judge bench, headed by Justice Aminuddin and comprising Justice Jamal Khan Mandokhail, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, and Justice Irfan Saadat Khan on Monday, heard the ICA regarding setting aside of the SJC’s order dated 08.3.2019 in reference against ex-CJP Mian Saqib Nisar.

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

The attorney general informed that advocates, Faisal Siddiqui, Moiz Jaffery, Akram Sheikh, and Khawaja Haris would appear as the amicus curiae.

Faisal Siddiqui submitted that under Article 209 of the Constitution, the proceedings are initiated against a judge for misconduct, but it abates the moment he resigns or retires. However, he stated that even if a judge resigns against whom the proceedings are pending before the Council he can be held accountable under the ordinary law.

Justice Jamal questioned whether proceeding against a judge under normal law after his retirement or resignation does not amount to compromising the independence of the judiciary. He further questioned would a judge not remain in fear if it was said that a case against him could be filed after his retirement.

Justice Musarrat noted that Article 209 does not say anything that the proceeding before the Council should stop if the judge retires or resigns.

Justice Amin inquired if there was any concept of removal of a judge even if he resigns to avoid the Council proceeding against him. Justice Irfan noted that in the instant appeal, the SJC noted that the complaint before it had become infructuous as the judge (ex-CJP Saqib Nisar) had retired, adding the Council, in this case, had given its opinion.

Justice Jamal questioned is it not wrong that a complaint was filed against the chief justice of Pakistan, who is chairman of the Council, but he did not hold the SJC meeting during his tenure, so it became infructuous after his retirement. He said there is nothing about the CJP in Article 209, and observed that under the said article when the President sends a reference to the SJC to investigate the allegations of misconduct of a judge, then it is not the responsibility of the Council to send its opinion to the president on the reference. Justice Jamal further questioned that if a judge after his retirement is sentenced in a criminal case then would he still be eligible for the pension?

Faisal Siddiqui submitted that the issue of the pension of a judge who resigns in order to avoid SJC proceedings pending before him can be done through legislation by the Parliament and not the court.

Advocate Moiz Jaffery argued that normal laws would only apply if a judge is not in his position. He said that Article 209 is the filter for the protection of the judge, adding first the judge needs to be filtered by the SJC about his conduct. He further said that even if a judge retires or resigns, the matter of misconduct first needs to be examined by the Council, and when the SJC give its findings about that judge then other ordinary laws can apply. He suggested that the SJC proceeding against the judge should continue even if he resigns or retires, adding the determination of misconduct is independent of the proceedings for the removal of a judge.

Akram Sheikh, another amicus, supported the stance of Moiz Jaffery. He said stopping the proceeding of the Council on a judge’s resignation is like giving a premium to a judge against whom the proceeding is pending to terminate the SJC proceeding.

The case was adjourned until 21st February.

Copyright Business Recorder, 2024