ISLAMABAD: The Supreme Court on Tuesday rejected a plea to structure the discretion of the Supreme Judicial Council (SJC) with an observation that the propositions advanced were not tenable or had merit.

On June 13, a two-judge SC bench consisting of Justice Ijaz-ul-Ahsan and Justice Munib Akhtar had reserved its ruling on a petition moved by Advocate Hina Jilani representing a number of civil society activists namely Afiya Shehrbano Zia, Afrasiab Khattak, M. Ziauddin, Farhatullah Babar, Nighat Said Khan, Farida Shaheed, Rubina Saigol and Bushra Gauhar.

The counsel had argued before the Supreme Court that a judge accused of misconduct was a burden on the exchequer if he finally reached superannuation despite the fact that the SJC was seized with a complaint against the judge.

On Oct 10, 2018, a total of 98 citizens, including the petitioners, had filed a complaint against then chief justice of Pakistan Mian Saqib Nisar under Article 209 of the Constitution over alleged breach of the judges’ code of conduct.

The original petition pleaded that at the time of its filing, the petitioner remained in dark about the status of the reference, but the judge against whom it was instituted got retired on Jan 17, 2019.

Now in the verdict, Justice Akhtar observed that it was necessary for the SJC, if it forms the necessary opinion, to report to the president that a particular judge be removed from office and on such report the president may do so. “Thus, the only action permissible to the SJC and hence the president, is the removal of the errant judge from office,” the verdict said, adding that if this was not possible, then Article 209(6) would have no application.

“Obviously, this outcome is impossible in relation to a judge who has already retired or resigned and, therefore, the proposition being advanced was with respect, constitutionally erroneous,” Justice Akhtar emphasised.

Even otherwise, the judgement said, it was clear that the Constitution draws a distinction between a person who, at the relevant time, holds office as judge and one who, having held that office in the past, does not. Article 209 applies only to the former and not the latter, it emphasised.

Finally, the verdict said, it must be noted that if accepted the logic of the proposition of the petitioners, 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 allegations of misconduct while in office.

“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,” the verdict said.

“On the logic of the proposition, such a complaint could conceivably be filed even years after the retirement or resignation (i.e. the alleged misconduct). Such an outcome is quite obviously beyond the contemplation of the Constitution,” the judgement explained.

Published in Dawn, June 28th, 2023

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