A Judge – To Be Or Not To Be
In a recent article titled “Silencing The Judiciary?” published on CourtingTheLaw.com[1], a very robust view had been offered by a fellow author in relation to the “independence of judiciary”, “rule of law” and “due process of accountability of judges” based on which the author asserted that “the Imran Khan led government in Pakistan appears to have threatened the independence and impartiality of the Supreme Court and Sindh High Court judges known and respected for their honesty, integrity and hard work” and “if the government undermines the independence of judges, how will the judicial system ensure the ultimate goal of an impartial judiciary?”. Finally, the article stated that, “The government must withdraw the references filed against the judges and refrain from being an impediment to the judiciary’s independent and impartial performance of duties.” I feel that these statements have the capacity to undermine the constitutional framework governing the issue.
Before going any further, it would be appropriate for me to confess my deficient legal status to comment on any respectful judge of the superior courts of Pakistan who, in any case, are safeguarded through an absolute constitutional bar, which all lawyers (and the other members of the society) must fully respect. I will, thus, not endeavor contempt but will, in full respect to the institution that I passionately serve, only touch upon the legal concepts and precedents that flow from it.
Any article regarding the judiciary must inaugurate by recognizing the services of Sir Edward Coke for the independence of judiciary which had been impressed against His Majesty, King James I of House Stuart of England in the following words:
“Quod rex non debetesse sub hominesed sub Deo et lege.”
[The king should not be under man, but under God and the law.]”[2]
In other words, no one is above the law!
The importance of judicial conduct has also been engraved in the Holy Quran in various Surahs including the 5th Surah namely An-Nisa at Verse No. 58 which reflects the Almighty’s commandment as follows:
إِنَّ اللَّهَ يَأْمُرُكُمْ أَنْ تُؤَدُّوا الْأَمَانَاتِ إِلَىٰ أَهْلِهَا وَإِذَا حَكَمْتُمْ بَيْنَ النَّاسِ أَنْ تَحْكُمُوا بِالْعَدْلِ ۚ إِنَّ اللَّهَ نِعِمَّا يَعِظُكُمْ بِهِ ۗ إِنَّ اللَّهَ كَانَ سَمِيعًا بَصِيرًا
“58. And verily God commands to handover the trust of leadership to those entitle by virtue of their being immaculate (and Divinely inspired as Divine Lights) and when you judge amongst people, dispense your judgment with justice[3]; verily God advises you to your benefit, verily He is hearing and seeing.”
To embellish the difficulty envisaged in the prescribed role of a judge, it would also be useful to quote the following Hadith of the Holy Prophet (peace be upon him) which roots from Amr ibn al-As and is present in Sahih al-Bukhari at 6919 and Sahih Muslim at 1716:
“If a judge makes a ruling, striving to apply his reasoning and he is correct, then he will have two rewards. If a judge makes a ruling, striving to apply his reasoning and he is mistaken, then he will have one reward.”[4]
Finally, perhaps the most celebrated paragraph on the selection of judges, judicial conduct and independence of judiciary can be found in a letter authored by the Fourth Caliph of Islam to his newly appointed Governor of Egypt, Malik bin al-Harith al-Nakha’i (also known as Malik al-Ashtar), in approximately 658 A.D. in the following words (as translated):
“Select as your chief judge one from the people who by far is the best among them; one who is not obsessed with domestic worries; one who cannot be intimidated; one who does not err too often; one who does not turn back from the right path once he finds it; one who is not self-centered or avaricious; one who will not decide before knowing the full facts; one who will weigh with care every attendant doubt and pronounce a clear verdict after taking everything into full consideration; one who will not grow restive over the arguments of advocates; one who will examine with patience every new disclosure of facts; one who will be strictly impartial in his decision; one whom flattery cannot mislead; one who does not exult over his position. But it is not easy to find such men. Once you have selected the right man for the office, pay him handsomely enough to let him live in comfort and in keeping with his position, enough to keep him above temptations. Give him a position in your court so high that none can even dream of coveting it, and so high that neither backbiting nor intrigue can touch him.”
(Emphasis added.)
Based on our faith, we all seek guidance of a higher authority, as has also been held by the Supreme Court of Pakistan in a judgment titled Zahid Rehman versus The State (reported as PLD 2015 SC 77) in the following words:
“I must, however, at the outset acknowledge my inadequacy to interpret Almighty Allah’s commands with certainty and seek His protection and mercy for any mistake in my understanding.”
But, it would also be safe to assume that:
- a person nominated, and appointed, as a judge must be of impeccable character (close to, if not equal to, sadiq and ameen);
- a judge should be knowledgeable in law for the benefit of litigants to adjudicate justly according to the available facts;
- a judge should be well-taken care of by the state, both in perks and privileges, in order to dispel worldly pleasures (this should rest aggressive queries relating to judges’ perks and privileges by various sections of the society – for further guidance, please refer to the judgment in Government of Sindh v. Sharaf Faridi (reported as PLD 1994 SC 105)); and,
- finally, and perhaps most importantly, the concept of independence of judiciary is part of the basic structure of any mechanism of governance. This concept is directly affiliated to each aspect of the judiciary ranging from selection, appointment, confirmation, perks and privileges, tenure, judicial functions, retirement (post-retirement) and finally, removal (which is the contentious issue under discussion). Any disturbance to the concept may infringe upon the balance of powers between the organs of the government or state institutions, the quality of justice to establish the writ of the state and adjudication of issues relating to state subjects.
Over the last seven decades, Pakistan’s jurisprudence towards the independence of judiciary has considerably developed to directly affiliate itself with the removal of judges. The journey from Government of India Act, 1935 to Indian Independence Act, 1947, and Pakistan (Provisional Constitution) Order, 1947 to Constitution of Pakistan, 1956, may require a prequel, therefore, for the sake of interest and brevity, this article will commence its review starting from the first Constitution of Pakistan, 1956.
The 1956 Constitution
The very first Constitution was adopted by the Constituent Assembly on March 23, 1956. Amongst many things that it envisaged, the concept of removal of judges had been outlined in Article 151 (for Supreme Court) and Article 169 (for High Courts). Unlike previous enactments in which the appointment and removal of judges had been the ultimate royal prerogative, Article 151(1) of the 1956 Constitution stated that,
“A Judge of the Supreme Court shall not be removed from his office except by an order of the President made after an address by the National Assembly, supported by the majority of the total number of members of the Assembly and by the votes of not less than two-thirds of the members present and voting, has been presented to the President for the removal of the Judge on the ground of proved misbehaviour or infirmity of mind or body”.
(Ayub Khan was not in power when the 1956 Constitution was promulgated). The President could remove a superior court judge only after addressing the National Assembly, supported by a majority of Members of the Assembly and by votes of not less than two-thirds of the Members present and voting.
Conversely, under Article 169, a much simpler mechanism had been adopted for removing High Court judges, which was as follows:
“A Judge of a High Court shall not be removed from his office except by an order of the President made on the ground of misbehaviour or infirmity of mind or body, if the Supreme Court on reference being made to it by the President, reports that the Judge ought to be removed on any of those grounds.”
Thus, under both Articles, “misbehavior” was deemed to be the threshold for maintaining conduct and charging criteria for the removal of a judge of the superior court. To this end, your attention is invited to the precedent in State versus Mr. Justice Akhlaque Husain, Judge of the High Court of West Pakistan (Reported as PLD 1960 SC 26). In this matter, a reference under Article 169 of the 1956 Constitution had been moved on grounds of “misbehavior” including:
(i) whether the judge had filed income tax returns on the basis of a partnership deed executed to evade taxes; and
(ii) reaped personal profit in the shape of allowances by causing excessive public expenditure and inconvenience to parties and witnesses.
The relevant parties contested that the charges on the pretext that the allegations did not constitute “misbehavior”. This had been effectively defined[5] in the above decision in the following words:
“The word “misbehaviour” must be understood in its ordinary sense, viz. as implying misconduct, that is to say, conduct which is unbecoming of a Judge or renders him unfit for the performance of the duties of his office, or is calculated to destroy public confidence in him.”
It was concluded that:
“At the conclusion of this lengthy enquiry, we proceed to state our findings on the charges preferred against the respondent. We find him to be guilty of misbehaviour in following matters, viz.
(1) the matter of the purported deed of partnership, and all actions pursuant thereto, involving the formation of a conspiracy with seven lawyers, and the utilization of numerous false declarations to mislead the income-tax authorities, with intent to secure great and unlawful pecuniary advantage to the respondent; and
(2) in the discharge of his duties as Chairman, West Pakistan Election Petitions Tribunal, he fixed cases for hearing mostly at places far removed from headquarters, and often for removal from the constituencies concerned, in such a manner, and the requisite journeys were so performed and travelling and daily allowances were to such an extent irregularly charged, as to show clearly that the primary purpose was to make the maxim profit out of these additional allowances, and that the requirements of the petitions and the interests and convenience of the parties and their witnesses were disregarded for the most part.
We find the respondent not guilty of misbehaviour in respect of the third charge, viz.,, that relating to the appearance of Mr. Raza Kazim on the 11th July 1958, in the respondent’s Court.
We have formed the opinion that the misbehaviour proved against the respondent in the two first-mentioned cases is of a gross nature, and amply sufficient to justify the removal of the respondent from his office, and we hereby make our report accordingly.”
(Emphasis added.)
It was perhaps the first example of a judge of the superior court being caused to be removed on the grounds of misleading income tax authorities with the intent to secure great and unlawful pecuniary advantage. Such grounds were tantamount to “misbehavior” in the 1956 Constitution which, in the eyes of laypersons (and lawyers), were likely to have a lower threshold as far as “misconduct” had been concerned (see below) as prescribed in later Constitutions of Pakistan. Before proceeding further, it may be worthwhile to note that the Supreme Court in a later judgment titled Syed Akhlaque Husain versus Pakistan (reported as PLD 1969 SC 201) held that once the Supreme Court had submitted its findings to the President, pursuant to Article 169, it became functus offico (no further authority) and could not recall or review its findings.
The 1962 Constitution
In 1962, Ayub Khan promulgated the Constitution of Pakistan, 1962. In the present context i.e. removal of judges, the concept of “Supreme Judicial Council” (SJC) was adopted under Article 128.[6]
At the relevant time, it was a very important step towards ensuring the independence of judiciary for the following reasons:
(i) the code of conduct for judges was to be issued by the judiciary and not the legislature or executive;
(ii) the criteria for removal of judges was upgraded from “misbehavior” to “gross misconduct”;
(iii) the mechanism for removal of both Supreme Court and High Court judges was aligned;
(iv) a separate constitutional body was created which could take cognizance against a judge suo moto or through a reference by the President of Pakistan;
(v) on the face of it, no executive interference seemed to have been involved during the decision making process; and
(vi) a complete constitutional safeguard was provided in Article 128(7) whereby a judge of a superior court was not be removed from office except under Article 128, meaning that the National Assembly could also not impeach a judge of the superior court.
Article 128 of the 1962 Constitution had been comprehensively interpreted in President of Islamic Republic of Pakistan versus Mr. Justice Shaukat Ali (reported in PLD 1971 SC 585) by Justice Hamoodur Rahman. In the matter, the SJC performed an inquiry regarding the declaration of assets under the Judges (Declaration of Assets) Order, 1969 by a certain judge and submitted a report to the President of Pakistan for consideration under Article 128 of the 1962 Constitution. After reviewing the report, the President of Pakistan was of the view that the judge might have been guilty of “gross misconduct” and requested the SJC to proceed in the matter. The SJC framed ten (10) charges, summarized as follows:
- Pre-elevation, and on appointment as a High Court judge, he was a shareholder/ director of Vulcan Company Ltd and Ally Brothers & Company (Pakistan) Ltd, and post-elevation he did not sever his connections with the said companies;
- As a judge, he had business and financial dealings with the said companies including receiving money from the said companies;
- Involved himself in activities of industry and trade for the pursuit of wealth in violation of the Code of Conduct of Judges including
(a) being a substantial shareholder in a family concern namely Vulcan Ice Factory and Metropole Cinema Ltd;
(b) entered into financial obligations in the nature of advances and/or loans and maintenance of personal ledger account;
- Procurement of goods directly, and in connivance with his wife, in violation of Foreign Exchange Regulation Act, 1947;
- Direct and indirect sale of the above goods imported under his own name and his wife’s name, for profit;
- Abetting in the sale of a Mercedes Benz car that was imported under the name of his wife;
- Attestation of an incorrect declaration of his wife relating to the price of Mercedes Benz car;
- Entering into a compromise with his first wife to ensure smooth elevation as a judge and then dishonoring such comprise;
- Making incorrect and misleading statements in the documents provided to the SJC in relation to asset scrutiny;
- Assets held and acquired by him during the tenure of his office as a judge had not been commensurate with the legitimate sources of his income and propriety.
The SJC conducted exhaustive proceedings synonymous to a civil trial (including examining over 20 Pakistani and foreign witnesses) and defined the parameters of “misconduct” in the following words:
“The position under the Constitution of 1962 is not materially different… This scheme has adopted the principle that impeachment of a Judge by the Legislature is not a satisfactory method but that a body of Judges themselves should be set up to enquire into the conduct of judges. The position, therefore, now is that we have a Code of conduct, which, though not exhaustive… In considering whether the conduct of a Judge… one has first to see if his conduct is violative of any one of the Articles prescribed in the Code and then to consider whether even otherwise it is so infamous or scandalous as to be conduct unbecoming of a Judge or rendering aim unfit for the performance of his duties or calculated to destroy public confidence in him. The Article with which we are concerned, in these charges, is Article VI, which reads as follows:
“A Judge should endeavor to avoid, as far as possible, being involved in litigation either on his own behalf or on behalf of others. In particular, he should not involve himself in activities such as industry, trade, or speculative transactions, for the pursuit of wealth can never be the objective of a Judge.
To employ the influence of his position to gain undue advantage, whether immediate or future, is a grave fault.
A Judge must avoid incurring financial or other obligations to private institutions or persons such as may embarrass him in the performance of his functions.”…
Our Code of Conduct requires a very high degree of rectitude in a Judge. Read as a whole, it appears, that he is required by Article II to be “God-fearing, law-abiding, abstemious, truthful of tongue, wise in opinion, cautious and forbearing, blameless, untouched by greed”, and furthermore, by Article III to be above reproach, and for this purpose to keep his conduct in all things, official and private, free from impropriety”. Reading the Articles of the Code of Conduct, therefore, as a whole, we are of the view that in order to judge the propriety or impropriety of the actions of a Judge whose case has been referred to the council we have to keep in mind the entire code, because the nature and scope of an Article itself is to be ascertained in the light of the objectives of the code as a whole.
Furthermore, it also went on to establish the criteria for “gross” misconduct by holding that,
“The relevant dictionary meaning of the word “gross” is coarse, flagrant, palpable, glaring or dense. It indicates the degree as well as the quality of an act or omission. There is a difference between degree and quality. Degree connotes in this concept the attitude of mind and quality connotes here the obviousness or doubtlessness of the nature of an act or omission. If an act or omission is obviously and doubtlessly misconduct, then it is gross in quality. A misconduct which is not gross in quality but is deliberately or negligently repeated, then it is gross in degree. Misconduct is a negative concept like negligence. Therefore, to measure its degree or quality, it should be judged by the care taken to act properly and by its contrast with good conduct. The first test is of degree and the second of quality. The explanations of an act or omission which is misconduct, can be an indication of its degree. An act or omission which is undeniably or unquestionably misconduct and defies explanations is gross in quality. The reverse of it is that if there is a genuine doubt about an act or omission being misconduct or not, then it is not gross in quality. If such an act is deliberately and on several occasions repeated in disregard of the care required for rectitude then it is gross in degree.”
Based on the above, the SJC held that the assets of the judge were “beyond his known sources of income…” and that “the declaration of assets filed by the respondent was, therefore, to that extent clearly false.” Accordingly, charges (i), (ii), (iii), (viii), (ix) and (x) were proved against the judge and he was held to have violated Article II (1st part), III and VI (2nd part of 1st part) of the Code of Conduct for Judges of superior courts.
For the sake of brevity and respect for the institution, comment will not be made on the merits discussed by the SJC (which are equally important and recommended to be thoroughly read), but it remains clear that the SJC had the authority to review, and in fact review comprehensively, the declaration of assets of the relevant judge in conjunction with the actual position to cull the financial status of the said judge to establish “assets beyond known sources of income”. Moreover, the SJC also reviewed non-financial conduct/ arrangements of the judge to establish “gross” misconduct in terms of the Code of Conduct of Judges of superior courts.
Before moving on to the final limb of my article, it is important to note that in the judgment titled Attorney General of Pakistan versus Yusuf Ali Khan (reported as PLD 1972 SC 115), a lawyer was found guilty for contempt of court in his adventure to request, through a scandalous letter, a Presidential reference against certain judges of the superior courts of Pakistan. The Supreme Court clearly held that an attempt to seek reference against judges of the superior courts of Pakistan was a serious exercise which could not be used for any gain (such as in the case at hand) or misused. If that was the case then the Supreme Court would seek to protect the institution and its judges and would proceed with contempt of court (and possibly find the party guilty).
The 1973 Constitution
The current codified Constitution of Pakistan, 1973 came into force during Bhutto’s era. The debate as to whether the 1973 Constitution had been enacted by elected or selected members of the National Assembly can be tabled another day, but over the past four and half decades this has been considered, accepted and deemed to be a valid and organic law governing the state of Pakistan and its subjects.
Under Article 209[7] of the 1973 Constitution, the earlier concept of SJC was adopted from the 1962 Constitution. In fact, framers of the 1973 Constitution, most respectfully, barring certain rearrangements in Article 209, did not improvise to enhance the concept adopted from the 1962 Constitution, for example, including rules of procedure, a fresh code of conduct or other ancillary matters. Nevertheless, as Article 209 of the 1973 Constitution is valid in its present form, legal principles enumerated under Article 128 of the 1962 Constitution in the SJC’s decision in Justice Shaukat Ali’s case supra would remain the same and be applicable.
Moving further, the case-law that has developed under Article 209 of the 1973 Constitution is as follows:
- Removal of judge from a bench hearing a case due to health and sickness would not be synonymous to removal by the SJC (Zulfiqar Ali Bhutto versus The State, reported as PLD 1979 SC 38).
- Security of tenure of a judge has been enshrined in Article 209 which also has primacy over Article 203-C of the Constitution (Al-Jehad Trust versus Federation of Pakistan, reported as PLD 1996 SC 324).
- A constitutional petition is not maintainable in which direction is sought from the SJC or the President to initiate or file a reference under Article 209 against a judge of the superior courts (Muhammad Ikram Chaudhry versus Federation of Pakistan, reported as PLD 1998 SC 103).
- Invalidity and unconstitutional appointment of a judge of the superior judiciary is beyond the inquiry performed by SJC under Article 209 as it has no nexus with mental or physical incapacity or misconduct (Malik Asad Ali versus Federation of Pakistan, reported as PLD 19998 SC 161, also followed in a later judgment titled Ghulam Hyder Lakho versus Federation of Pakistan, reported as PLD 2000 SC 179).
- Judges of the superior judiciary enjoy constitutional guarantee against arbitrary removal other than through the procedure prescribed in Article 209 (Zafar Ali Shah versus General Pervez Musharaf, reported as PLD 2000 SC 869). In this case, as the judges had not taken any remedial actions or challenged the actions of the military regime, rather had accepted pensions and other retirement benefits, their removal for not taking oath under the Oath of Office (Judges) Order, 2000 was declared as a past and closed transaction. The decision was also upheld by the Supreme Court of Pakistan while dismissing review petitions based on the above grounds in another the judgment titled Wasim Sajjad versus Federation of Pakistan, reported as PLD 2001 SC 233.
- In Khan Asfandyar Wali Khan versus Federation of Pakistan, PLD 2001 SC 607,[8] the Supreme Court, while deciding the vires of the National Accountability Ordinance, acknowledged that while it was not applicable to judges, that the judges were still not immune from accountability. In the fitness of things (especially if the Cabinet’s approval or Prime Minister’s advice is required by the President to refer a matter to SJC), it is important to reproduce the ratio of the judgment:
“…the Supreme Judicial Council (SJC) against a Judge of the Superior Courts under Article 209 of the Constitution is not available to any individual. Secondly, the President alone on the advice of Prime Minister or the Cabinet[9] as the case may be, can refer a case of the Judge of the Superior Courts to Supreme Judicial Council for holding an enquiry against him. Thirdly, the jurisdiction of Supreme Judicial Council to hold an enquiry against the Judge of a Superior Court arises only when a reference is made to it by the President in this behalf. Fourthly, the enquiry by the Supreme Judicial Council against the Judge of a Superior Court under Article 209…Lastly, the findings of the Supreme Judicial Council in such an enquiry are recommendatory in nature and the action, if any, is to be taken by the President on the advice of the Prime Minister or the Cabinet…The Supreme Judicial Council is a unique institution, which comprises the senior most Judges in judicial hierarchy and entrusted with the onerous responsibility of deciding complaints that are referred to it through references by the President alone. It is an essential prerequisite of the independence of judiciary that there is put in place a system of accountability. It should, therefore, be the endeavour of the Judges of the Superior Courts to make the Code fully applicable and ensure that it is strictly adhered to. As held in the case of Zafar Ali Shah (supra), the Judges of the Superior Courts are not immune from accountability. They are accountable only in the manner laid down under Article 209 of the Constitution. We may also observe that no question was raised by the learned counsel for the petitioners in regard to the accountability of Judges vis-a-vis NAB Ordinance. However, we thought it in the fitness of things to reaffirm the observations in the case of Zafar Ali Shah (supra) that the Judges of the Superior Courts are not immune from accountability and that it is for the President to make a reference if in a case such a course is desirable at his end.”
(Emphasis added.)
- In extraordinary times (i.e. when judges of superior courts had been removed by a military dictator), a constitutional petition, titled Iftikhar Muhammad Chaudhry versus the President of Pakistan (reported as PLD 2007 SC 578), filed by the Chief Justice of Pakistan (against a reference filed by General Pervez Musharaf), had been allowed by a larger bench (ten in support and three dissenting) through a short order, and the SJC was directed to keep its hands off the reference, quashing the said reference, while the petitioner was restored as the Chief Justice of Pakistan.
- Conversely, in Tika Iqbal Muhammad Khan versus General Pervaz Musharaf (reported as PLD 2008 SC 178), the principles enumerated in the Ikram Chaudhry judgment supra had been reaffirmed and it was further held that “no direction could be issued to the SJC to stay its hands off the Reference filed against the (former) Chief Justice of Pakistan”. A review had been filed against the judgment which was dismissed unanimously by thirteen (13) judges of the Supreme Court in Tika Iqbal Muhammad Khan versus General Pervez Musharaf (reported as PLD 2008 SC 615).
- However, in a turn of events known as the “restoration of judiciary”, fifteen (15) restored judges of the Supreme Court (“non-PCO judges”) in a judgment titled Sindh High Court Bar Association versus Federation of Pakistan (reported as PLD 2009 SC 789 and 879) allowed the constitutional petitions and declared all extra-constitutional measures by the Musharaf regime as well as both Tika Iqbal Muhammad Khan judgments supra to be void ab initio, and held that the judges who had taken oath under the extra-constitutional measures (“PCO judges”) were never deemed to be judges because the seats never fell vacant as all non-PCO judges could not have been removed save in accordance with Article 209. It is appreciable that in this judgment the Supreme Court refrained from asserting further jurisdiction and issued directions to be proceeded against PCO judges under Article 209 of the 1973 Constitution. A review against this judgment had been filed and dismissed by the Supreme Court in the judgment titled Justice Khurshid Anwar Bhinder versus Federation of Pakistan (PLD 2010 SC 483).
- In 2009, the Supreme Court (having a larger bench with three dissenting notes) also issued detailed reasons/judgment against its short order (in the Iftikihar Muhammad Chaudhry case, reported as PLD 2007 SC 578 referred to in paragraph (vii) above) through a judgment titled Chief Justice of Pakistan versus the President of Pakistan (reported as PLD 2010 SC 61)[10] in which the Supreme Court inter alia decided what could and could not be challenged under constitutional jurisdiction within the ambit of Articles 209 and 211, by holding the following:
“(a) that the expression “PROCEEDINGS BEFORE THE COUNCIL” as used in Article 211 of the Constitution would mean only those acts, actions, happenings or proceedings which actually took place in front of or in the presence of the Supreme Judicial Council and whatever happened not before the said Council, would not be covered by or included in the said expression;
(b) that what would, therefore, fall within the purview of the said Article 211 would be just the “PROCEEDINGS BEFORE THE COUNCIL” as above defined, the “REPORT OF THE COUNCIL” submitted to the President as a result of the said proceedings and finally the “REMOVAL OF A JUDGE BY THE PRESIDENT UNDER CLAUSE (6) OF ARTICLE 209” and no more;
(c) that other steps or matters. mentioned in Article 209 of the Constitution i.e. the collection of information or material about the mental or physical incapacity of a Judge or about any act of misconduct committed by a Judge; the receipt of such an information by the President; formation of opinion by the President about the possible mental or physical incapability of a Judge or the possibility of a Judge having misconducted himself and the desirability or otherwise of making a direction to the S.J.C. to inquire into the same, are not covered by the said ouster clause contained in the said Article 211 of the Constitution, and, finally,
(d) that the said matters not hit by the mischief of Article 211 and mentioned above, would be subject to examination, scrutiny and judicial review like any other executive or administrative act.”
(Emphasis added.)
After establishing the eventualities (in paragraph (c) above) which had been subject to judicial review, the Supreme Court further reviewed the proceedings before the SJC against the Chief Justice, and while acknowledging the ouster clause in Article 211 (as declared in paragraphs (a) and (b) above), it further held the following:
“(a) that the Supreme Judicial Council…is a forum entitled to the highest of respect;
(b) that the said Council, however, cannot be conceded the status of a court;
(c) that the ouster clause of Article 211 of the Constitution would not protect acts which were mala fide or coram non judice or were acts taken without jurisdiction;
(d) that in situations of extraordinary nature, the S.J.C. would be amenable to the [constitutional] jurisdiction of this Court under Article 184 of the Constitution; and
(e) that the principle of comity among Judges of the Superior Courts is only a rule of propriety and could never be considered an impediment in the way of providing justice to an aggrieved person.”
In other words, today the doors for a judge of the superior court of Pakistan to challenge a Presidential reference under constitutional jurisdiction on the basis of the said precedent are open, even though the above judgment is peculiar to its special circumstances.
- In October 2018, in SJC No. 347 of 2018[11], the Supreme Judicial Council issued a unanimous opinion for removal of a judge who had leveled serious allegations against the superior judiciary and a state institution and thus violated the code of conduct for superior judges. The proceedings against the ex-judge also developed further law through the judgment in Justice Shaukat Aziz Siqqidui versus Federation of Pakistan (reported as PLD 2018 SC 538) in the context of regulation of proceedings by the SJC pursuant to the SJC Procedure of Inquiry 2005, which does not require further analysis at this point.
In the aforementioned scenario it can safely be assumed that the mechanism for removal of judges is directly affiliated with the independence of judiciary. However, it does not mean that this important organ of the state can work beyond the realm of accountability. While Article 209 ensures security of tenure for superior judges and ensures judicial independence from the executive and legislature, it also reminds the judges to strictly follow the code of conduct for superior judiciary. Any failure to follow the same may result in an initiation of inquiry by the SJC suo moto or by reference from the President of Pakistan (subject to the mechanisms and thresholds provided in the above judgments). The proceedings are undertaken by peers of the judge who are well conversant with the applicable laws and facts of the case (received through inquiry). In the normal course, an exercise of power by the President of Pakistan mandated under Article 209 by filing a reference would not, in itself, undermine the independence of judiciary or infringe upon the concept of rule of law because it is an accepted and established constitutional route for the accountability of judges. However, it can safely be opined that any reference or proceedings initiated against a judge based on extra-constitutional measures (which are without jurisdiction, coram non judice or mala fide) would certainly undermine the rule of law and thus the independence of judiciary (as in the Musharaf regime against the non-PCO Chief Justice and other judges). If that is the case then the Supreme Court has placed an effective remedy to challenge any such measures through constitutional jurisdiction under Article 184 of the Constitution because such inquiry or reference, even though initiated under Article 209 (at the behest of an extra constitutional measure), would be in direct contradiction with the said Article 209 and the precedents established thereon (as above).
Conclusion
To conclude, I find myself in complete disagreement with the fellow columnist’s reason reproduced at the beginning of this article on the basis that the “Imran Khan led government” has not filed any reference (as it cannot), or has taken any extra-constitutional step (like the one taken by the Musharaf regime), let alone has threatened the independence of judiciary or created any impediment to this effect. Had that been the case, I am confident that such action would not be sustainable before the Supreme Court, which in itself is now a very strong and independent institution in Pakistan. Likewise, the condemnation of the President of Pakistan for simply exercising powers under Article 209 of the 1973 Constitution must be avoided because he has the mandate to exercise such powers, and also beacuse the SJC has the constitutional right to reject any and all allegations against a judge against whom a reference has been filed by the President, if the same is baseless.
I am also surprised at the conduct of certain journalists and, with respect, at the senior members of the legal fraternity who are lettering extreme views (such as ‘witch-hunt’) regarding due process before the SJC, rendering lengthy legal opinions under various laws, including income tax, on the subject matter. This has been carrying on even before the SJC has had the opportunity to commence proceedings, leading some to believe that the SJC would not be able to function in accordance with the law and its constitutional mandate.
I therefore cannot concede to any such views that have the capacity to undermine the constitutional framework and unequivocally repose trust in the judiciary and the superior judges who, and whose predecessors, have safeguarded our institutions in the toughest of times through some of the best legal precedents and opinions outlined in this article (or otherwise).
This article is dedicated to my mentor in the legal professional, all the female judges in Pakistan and additionally, to an ad hoc ex-judge of the honorable Lahore High Court namely Justice Karrar Hussain Zaidi, who was elevated in the seventies but later not confirmed and subsequently died the following year – may his soul rest in peace.
———-
References
[1] http://courtingthelaw.com/2019/06/08/commentary/silencing-the-judiciary/
[2] Article titled “James I and Sir Edward Coke” published by Roland G. Usher, The English Historical Review, Vol. 18, No. 72 (Oct., 1903), pp. 664-675
[3] In some versions of the translation, the following Latin English is used: “And when ye judge between man and man, that ye judge with justice…”
[4] In some scripters, the translation of the Hadith from Arabic is noted as follows: “If a judge gives a judgment using his best judgment and is correct, then he receives a double reward (from God). If he uses his best judgment but makes a mistake, then he receives a single reward.” The status of Arabic version is noted as MuttafaqunAlayhi i.e. authenticity agreed upon.
[5]“In our Constitution, which is a written Constitution, the only provisions regarding the removal of Judges are Articles 151 and 169 both of which use the word’ misbehaviour’ irrespective of any qualification except that in Article 151 it has the prefix “proved”, a distinction which, as is conceded by the respondent, even when considered with clause (2) of the Article, cannot have the effect of varying its meaning. In an English statute which has been judicially construed and the State constitutions of some of the United States the word ” misbehaviour ” or “malfeasance”, where the intention is that an officer should be liable to removal only on the ground of misbehaviour relatable to his office, is followed by some such words as ` in his office ‘, ‘ in respect of his office ‘, or `therein ‘. No such words are to be found in our Constitution, and in the absence of any such restricting words the word “misbehaviour” must be understood in its ordinary sense, viz. as implying misconduct, that is to say, conduct which is unbecoming of a Judge or renders him unfit for the performance of the duties of his office, or is calculated to destroy public confidence in him…Even if it be assumed that the word `misbehaviour’ in Article 169 is used in a restricted sense and means misbehaviour in respect of office or in official capacity, the charges relating to income-tax and travelling allowance, in the circumstances of the case, have a necessary reference to the respondent’s official position and are not completely independent of or severable from his official status. In our system of administration of justice, the Bar occupies a very important, in fact a fundamental, position and a High Court and therefore every Judge of that Court has a responsibility for the manner in which practising lawyers conduct themselves…In the present case, the gravamen of the charge relating to income-tax is that being a Judge of the High Court the respondent, with a view to evading the payment of income-tax, abetted and incited several members of the Bar for a little or no consideration to sign false documents and make false declarations, and led them to a conduct which in English Common Law is a misdemeanour (vide Alan Harry Hudson, 1956, Criminal Appeal Reports 55) and in our own law punishable under section 52 of the Income-tax Act and sections 171, 182, 191, 192 and 193 of the Pakistan Penal Code. If any such criminal conspiracy on the part of a practising lawyer had come to the notice of the respondent, it would have been his obvious duty as a High Court Judge to take notice of it and direct disciplinary proceedings to be taken against the offending lawyer. Here the respondent himself organised a criminal conspiracy, and gave to these unfortunate lawyers explicit instructions to carry out the object of that conspiracy. Thus he himself was guilty of what it was his duty as a High Court Judge to punish. Had he himself been a member of the Bar, such conduct on his part would have rendered him liable to be disbarred and disqualified for appointment as a Judge. It cannot, therefore, be said that the charge of income-tax is foreign to his official capacity and had nothing to do with his conduct as a Judge.”
[6] Article 128
(1) There shall be a Supreme Judicial Council of Pakistan, in this Article referred to as “the Council”.
(2) The Council shall consist of-
(a) the Chief Justice of the Supreme Court;
(b) the two next most senior Judges of the Supreme Court; and
(c) the Chief Justice of each High Court.
(3) If, at any time, the Council is inquiring into the capacity or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act as a member of the Council due to illness or some other cause, the Judge of the Supreme Court who is next in seniority below the Judges referred to in paragraph (6) of clause (2) of this Article shall act as a member of the Council in his place.
(4) The Council shall issue a code of conduct to be observed by Judges of the Supreme Court and of the High Courts.
(5) If, on information received from the Council or from any other source, the President is of the opinion that a Judge of the Supreme Court or a High Court-
(a) may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or
(b) may have been guilty of gross misconduct,
the President shall direct the Council to inquire into the matter.
(6) If, after inquiring into the matter, the Council reports to the President that it is of the opinion-
(a) that the Judge is incapable of performing the duties of his office or has been guilty of gross misconduct; and
(b) that he should be removed from office, the President may remove the Judge from office.
(7) A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article.”
[7] “(1) There shall be a Supreme Judicial Council of Pakistan, in this Chapter referred to as the Council.
(2) The Council shall consist of,
(a) the Chief Justice of Pakistan;
(b) the two next most senior Judges of the Supreme Court; and
(c) the two most senior Chief Justices of High Courts.
Explanation:- For the purpose of this clause, the inter se seniority of the Chief Justices of the High Courts shall be determined with reference to their dates of appointment as Chief Justice 549[otherwise than as acting Chief Justice] 549, and in case the dates of such appointment are the same, with reference to their dates of appointment as Judges of any of the High Courts.
(3) If at any time the Council is inquiring into the capacity or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or any other cause, then
(a) if such member is a Judge of the Supreme Court, the Judge of the Supreme Court who is next in seniority below the Judges referred to in paragraph (b) of clause (2), and
(b) if such member is the Chief Justice of a High Court; the Chief Justice of another High Court who is next in seniority amongst the Chief Justices of the remaining High Courts, shall act as a member of the Council in his place.
(4) If, upon any matter inquired into by the Council, there is a difference of opinion amongst its members, the opinion of the majority shall prevail, and the report of the Council to the President shall be expressed in terms of the view of the majority.
(5) If, on information from any source, the Council or the President is of the opinion that a Judge of the Supreme Court or of a High Court-
(a) may be incapable of property performing the duties of his office by reason of physical or mental incapacity; or
(b) may have been guilty of misconduct,
the President shall direct the Council to, or the Council may, on its own motion, inquire into the matter.
(6) If, after inquiring into the matter, the Council reports to the President that it is of the opinion,
(a) that the Judge is incapable of performing the duties of his office or has been guilty of misconduct, and
(b) that he should be removed from office, the President may remove the Judge from office.
(7) A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article.
(8) The Council shall issue a code of conduct to be observed by Judges of the Supreme Court and of the High Courts.
[8] Also followed in AG, Sindh versus Ahmed Ali (PLD 2008 SC 522) – a case known for restoring pensionary benefits to retired judges.
[9] “Cabinet” has defined in the Mustafa Implex case (PLD 2016 SC 808)
[10] Paragraph 157 of this judgment is construed as possibly the best conclusion on the concept of independence of judiciary and is recommended for reading.
[11] http://www.supremecourt.gov.pk/web/user_files/File/S.J.C_347_2018.PDF
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