Disposing of the constitution petitions of Justice Shaukat and Justice Muhammad Farrukh Irfan Khan, the apex court said the question regarding conduct of proceedings through open justice needs to be revisited and decided afresh by the Supreme Judicial Council (SJC).
A five-member bench, headed by Justice Sheikh Azmat Saeed, held that SJC is a unique forum created by the Constitution. "It is not a court but more akin to a Domestic Disciplinary Tribunal whose proceedings are administrative in nature and recommendatory in effect. But its findings have an element of conclusiveness," said the judgment announced on Thursday.
Justice Shaukat Aziz Siddiqui of Islamabad High Court (IHC) and Justice Muhammad Farrukh Irfan Khan of Lahore High Court had sought that the trial of the SJC should be held in an 'open court' instead of in-camera.
The court said the SJC Procedure of Enquiry, 2005 reflects the implied authority of the SJC to do all acts and employ all means necessary to exercise the jurisdiction conferred and to fulfill its mandate in accordance with the Constitution; hence, it is legally valid and effective in law.
The judgment said that the paragraph 7 of the SJC Procedure of Enquiry, 2005 is valid and intra vires to the Constitution. The paragraph 13 also does not offend against the Constitution or any of its provision.
The court noted that the obvious purpose of paragraph 13 is the protection of the rights and reputation of the person whose conduct and capacity is being inquired into and the protection of the institution of the judiciary, including the members of the SJC; hence, it must be interpreted in such context.
It held that the process of determination whether any prima facie case has been made for proceedings under Article 209 of the Constitution in any event should be held in-camera and the subsequent proceedings should also be held in-camera unless the person being inquired into waives such right.
"However, in such circumstances, since in-camera proceedings are not alien to our jurisprudence and can always be resorted to by the SJC even in the absence of the consent of the parties for well-defined reasons, including of an apprehension that the person whose conduct and capacity is being inquired into or his counsel may resort to baseless, scandalous and scurrilous allegations against the SJC or any of its members in order to publicize the same and thereby frustrate the very proceedings of the SJC."
The court said: "We cannot lose sight of the fact that the members of the SJC are also the Chief Justice and senior judges of the Supreme Court, the senior most chief justices of the high courts whose persons and reputation too need to be protected from frivolous baseless attacks."
The concept of openness attributable to a court does not necessarily apply in its entire amplitude to administrative proceedings before Domestic Tribunal. The inquiry before the SJC is not a spectator sport nor can there be any requirement of proceedings being conducted in a courtroom, said the judgment.
The petitioners also prayed that the SJC Procedure of Enquiry 2005 may be declared in its entirety to be unconstitutional. The Constitution of the SJC has also been called into question on the ground that one of the members [Chief Justice of IHC] disqualified to participate in such proceedings in view of Article 209(3) of the Constitution. It was also prayed that all the proceedings taken by the SJC be declared as null and void.
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