ISLAMABAD: The Supreme Court held 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-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 Wednesday, heard the ICA regarding setting aside of the SJC’s order dated 08.3.2019 in 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 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 on 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 proceeding, Attorney General for Pakistan Usman Mansoor Awan argued that judicial accountability is the sin quo non for ensuring the independence of judiciary, which is the protector of the fundamental rights of the citizens.
He requested the bench that clauses 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 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 had become infractuous as the judge was no more holding the position. He emphasised that any complaint against a judge, which relates to the allegations during the time period he was holding the position, must be scrutinised by the Council, and not outside agency or authority. The SJC must act in a 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 resign during the pendency of a case in order to avoid the consequences. She further said that if in the inquiry the allegations are proved against that judge then his resignation should be converted into his removal.
Justice Musarrat stated in India in 2011 a female judge of Calcutta High Court was removed on the grounds 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 the complaint should not be left to the discretion of the CJP.
Waqas Ahmed Mir, Sheherbano’s counsel, 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 a 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 the question why his client’s complaint against ex-CJP (Saqib Nisar) was not heard by the SJC during his tenure.
Faisal Siddiqui, who was appointed 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 a party, the attorney general was not issued a notice under Order 27 of the Supreme Court Rules, 1980, and show-cause was also not issued to the judge (Saqib).
Copyright Business Recorder, 2024
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