• Four to one verdict enables council to continue proceedings against Justice Mazahar Naqvi, others facing complaints
• Ex-CJP Saqib Nisar safe as matter taken up after his retirement
• Justice Rizvi dissents on grounds of limitation, merits of appeals

ISLAMABAD: In a split decision of four to one, the Supreme Court on Wednesday ruled that any misconduct proceedings, pending before the Supreme Judicial Council (SJC) against superior court judges, will not abate in the event of the resignation or retirement of the respondent judge.

After a prolonged hearing, Justice Amin-ud-Din Khan, who headed the five-judge bench, announced the short order, stating it will be the prerogative of SJC to continue with the complaint to its logical conclusion once it took cognisance of the matter. The court condoned delay in the filing of appeals.

Justice Syed Hasan Azhar Rizvi, however, dissented with the main order on grounds of limitation and merits of the intra-court appeals moved by both the federal government and Afiya Sheharbano Zia since the latter’s challenge was time-barred by 187 days.

Other members of the bench were Justice Jamal Khan Mandokhel, Justice Musarrat Hilali and Justice Irfan Saadat Khan.

The appeals were moved to challenge the 2023 verdict in the Afiya Sheharbano Zia case on the grounds that the SJC has been virtually rendered redundant by making Article 209 of the Constitution inapplicable to a judge, who faced allegations of misconduct, but either retired or resigned.

The partial acceptance of the appeal would mean that the ongoing proceedings against now retired Sayyed Mazahar Ali Akbar Naqvi before the SJC will continue until the council reaches a conclusion.

Recently, Chief Justice of Pakistan (CJP) Qazi Faez Isa revealed that he had sought opinion on complaints against 100 superior court judges by forwarding the same to the members of SJC.

But former CJP Saqib Nisar, against whom Ms Zia had instituted complaints, is safe since the council had taken up the matter after the retirement of Justice Nisar and rejected the same for being infructuous.

The SJC secretary told the court that the council had received 15 complaints against ex-CJP Nisar on Oct 12, 2018 which was taken up by the council on Feb 14, 2019 and dismissed for being infructuous because Justice Nisar had retired on Jan 17, 2019.

Govt’s contention

In its appeal, the government pleaded that the 2023 judgement had rendered the council virtually redundant by making Article 209 inapplicable to a judge, who faced allegations of misconduct but either retired or resigned.

Authored by Justice Munib Akhtar, a two-judge bench headed by now-retired Justice Ijaz-ul-Ahsan, had held in the 2023 Afiya Sheharbano Zia case that judges who retired or resigned do not fall within the ambit of Article 209 that determines misconduct of superior court judges.

The government appeal urged the apex court to hold that judges against whom proceedings were initiated should be proceeded against, and their resignation should not result in the abatement of such proceedings.

On the other hand, Afiya Sheharbano in her appeal filed through Advocate Waqqas Ahmad Mir had pleaded that the top court should lay down standards so that the SJC structured its discretion in relation to priority, listing and hearing of complaints and that the council’s eventual findings were publicly disclosed. They also requested the court to declare that failure of SJC to adopt a procedure compliant with well entrenched principles of due process and transparency violates constitutional standards as well as the fundamental rights of access to justice.

Attorney General for Pakistan (AGP) Mansoor Usman Awan said it was essential that a constitutional body like SJC must be proactive and perform in an efficient and transparent manner and should appear to citizens as if it was discharging its constitutional duties in a transparent and fair manner.

He also emphasised that all proceedings before the SJC do not necessarily entail removal of the judge since there could be some genuine reasons for any perceived misconduct on part of the judge concerned like absence on some medical grounds etc.

The AGP stressed that when the SJC took cognisance of any complaint then it should give some findings even if it reaches the conclusion that the complaint was not correct, emphasising that judicial accountability should be done by the peers in a manner not to undermine the institutions while keeping in view the norms of the profession.

Importance of accountability

Earlier, one of the amici curiae, Muhammad Akram Sheikh, argued that proceedings before the SJC intended for the protection of the court and its independence. He recalled that the concept of SJC was introduced to the Constitution by former military dictator Gen Ayub Khan.

The counsel emphasised that judges’ accountability was a necessary component of the independence of judiciary. Once an inquiry commences, it cannot be terminated in the event of retirement or resignation of the judge, he said.

Justice Mandokhel observed that independence meant to ensure protection of judges so that they dispense justice without fear, favour or external pressure.

The counsel emphasised that independence of judiciary was geared to inculcate confidence in the consumers of justice. He said the Constitution requires dynamic interpretation since it was not a document that can be amended every day.

Another amicus Khawaja Haris Ahmed, however, contended that Article 209 does not contemplate proceedings against in judge who attains the age of superannuation or resigns, adding the only punishment to the judge was removal from office, but when he was not in office, there was no reason to continue with the proceedings against the judge.

Published in Dawn, February 22nd, 2024

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