ISLAMABAD: The code of conduct for superior court judges lays down the standard to be maintained by them so that the institution of judiciary continues to enjoy the nation’s confidence, Justice Umar Ata Bandial observed on Wednesday while presiding over a 10-judge full court hearing challenges to the filing of a presidential reference against Justice Qazi Faez Isa.

"Not every error on the part of a superior court judge constitutes misconduct. The accountability of judges creates a perception among the people that a judge should be above an ordinary person and ordinary mind," Justice Bandial said.

The observation came in reply to senior counsel Hamid Khan’s argument that mere generalisations in the code of conduct do not define the "red lines" for judges.

Hamid Khan is representing four petitioners in the case — the Supreme Court Bar Association (SCBA), Quetta Bar Association president Mohammad Asif Reki, the Balochistan Bar Council and Punjab Bar Council vice chairman Shahnawaz Ismail.

The counsel contended that Article 209 of the Constitution, which deals with the Supreme Judicial Council (SJC), was deficient in many aspects since it did not provide any remedy to a judge facing allegations before the council.

Since no multiple remedy is envisaged in Article 209, the SJC seems to be more powerful than any other tribunal in the country, the counsel observed.

"It is incumbent upon the apex court that while deciding the matter at hand, it should define misconduct by drawing some red lines missing from the code of conduct."

Once appointed as superior court judge, the counsel said, the individual has a right to continue and should have the protection of tenure. This amounts to creating civil rights in favour of the judge, Hamid Khan observed.

Justice Faisal Arab observed that unlike ministers who can be removed by the prime minister, a judge can only be removed by the SJC.

"A judge enjoys holding his office not on anybody’s pleasure," said Justice Maqbool Baqar.

Justice Syed Mansoor Ali Shah observed that Article 209 of the Constitution requires the president to be a neutral person who advances neither the cause of the federation nor that of the executive.

Hamid Khan argued that an important feature of the Constitution was separation of powers and the president had an obligation to ensure that trichotomy of powers was maintained.

When the president receives some material from the executive, his office demands that he should ensure that the material against the judge was collected in a fair manner and that the executive power used in collection of the information should not be misused for any other collateral purposes, the counsel said.

"The president has to keep in mind the sensitivity attached to credibility of the judiciary because when a reference against a judge is sent to SJC, it affects the judge’s credibility."

The president is bound to act on the executive’s advice only in the performance of executive functions, and not in relation to the legislature or judicial actions, Hamid Khan contended.

He said that since all actions of the executive are taken in the name of the president, the executive’s advice is binding on the president only vis-à-vis executive actions. “But actions taken under Article 209 do not come under the executive domain.”

Bar associations are worried that in case the SJC took a decision against a judge, no appeal or remedy is available to the individual concerned, Hamid Khan added.

At this, Justice Baqar observed that the counsel was asking the court to be more cautious while deciding petitions in the absence of a remedy or appeal.

A duty has been given to the president and the executive to protect and defend the judiciary’s independence, the counsel said.

During the hearing, Justice Bandial observed that the Assets Recovery Unit collected material about the offshore properties of Justice Isa from Britain but not from the judge’s house.

Published in Dawn, December 19th, 2019