Judges will be able to escape the process of accountability if proceedings against them in the Supreme Judicial Council (SJC) become ineffective upon the retirement or resignation of the accused judge. This has been observed by Supreme Court's Justice Jamal Khan Mandokhail.
"If the proceedings are made dependent upon the will of the judge on account of his resignation, at any stage before conclusion of inquiry, it would let the judge, who is guilty of misconduct, to go Scott free by defeating the process of accountability," observed Justice Mandokhail in his 17-page additional note which was attached with the detailed judgement of a five-member bench on the federal government's intra-court appeal (ICA) against a verdict issued by a two-judge bench of the Supreme Court in the Afia Shehrbano Case. The additional note and the detailed verdict were released on Friday.
Justice Mandokhail further observed that allowing judges to escape accountability in such a manner would damage the norms of the rule of law and public trust in the role of judges and the judiciary at large.
The Supreme Court judge further observed that in a situation where an inquiry of misconduct against a judge is underway and he considers himself innocent, then he would not opt for resignation. Rather, he would like to face the proceedings, even after his retirement, to get rid of the baseless and frivolous reference of complaint.
"He will naturally want to secure his integrity and would prefer to not live with stigma," said Justice Mandokhail.
"For these reasons, it is imperative that once the Council, in exercise of its constitutional authority, initiates inquiry into the conduct of a judge, it cannot terminate or abate upon retirement or resignation of the judge from his office," observed Justice Mandokhail, adding that the citizens have a right to know the outcome of complaints.
On Afia Shehrbano's petition against former chief justice Saqib Nisar, Justice Muneeb ruled that the SJC could not proceed against retired or resigned judges.
The case came into the limelight when the SJC was proceeding against deposed SC Judge Mazahir Ali Akbar Naqvi, who had tendered his resignation as the SJC issued show cause notices to him over allegations against him.
Feeling aggrieved, the federal government moved the ICA, and a five-judge bench headed by Justice Aminuddin Khan heard the matter. By a majority of four to one, the bench held in its short order that if the SJC has initiated proceedings against a judge, they shall not diminish upon the judge's resignation or retirement, as the case may be, during such proceedings.
The top court further held that the SJC has the prerogative to proceed with the matter accordingly (and decide whether to pursue a matter further).
In light of the judgement on ICA, the SJC proceeded against Naqvi and eventually held him guilty of gross misconduct.
Ex-CJP Nisar held SJC hostage
Justice Mandokhail's additional note took strong exception to former chief justice Mian Saqib Nisar's conduct and his failure to refer complaints of misconduct against him to the SJC for a decision during his tenure.
Regarding the petition against former CJP Nisar, Justice Mandokhail observed that private appellants had filed complaints against him and that he sat upon these complaints, ensuring that the matter remained unreferred to the council while recusing himself.
Rather, Justice Mandokhail observed that the former chief justice 'held the SJC hostage' by not convening a meeting.
"It was not only his (Nisar) constitutional obligation, but was also moral and ethical responsibility to have had referred the matter to the Council and asked a judge of the Supreme Court, who was next in seniority below him to become a member, with further request to the Council to proceed against him accordingly."
Justice Mandokhail noted: "As a Chief Justice, he was burdened with more responsibility to maintain a high moral and ethical standard by placing himself before the Council for his accountability, but he failed to do so, what was expected from him."
The judge—who hails from Balochistan and was elevated to the Supreme Court in 2021, over two years after former chief justice Nisar had retired in 2019—further observed, "Failure to refer his matter to the Council by the former CJP not only resulted in undermining the constitutional provisions but also amounts to preventing the Council from performing its constitutional function."
"It is a fact that during his tenure, under his chairmanship, the Council conducted proceedings against some other judges, but withholding the complaint filed against him is a violation of the principle of equality regarding accountability amongst the judges."
Justice Mandokhail further said that it was equally the responsibility of other council members to inquire about the pendency of references or complaints against superior court judges. Unfortunately, Justice Mandokhail noted, the other judges, too, did not vigilantly perform their constitutional duty, which rendered several complaints, including the one against the former chief justice, infructuous on account of the retirement or resignation of judges.
"It had shattered the confidence of the appellants and many more, which had a negative impact upon the mechanism and procedure of inquiry proceedings into the conduct of judges."
"Had that complaint and many more filed against other judges been taken up and decided in time by the council, before the retirement of the former CJP and other judges, there would not have been any violation of the relevant provision of the Constitution nor would have created any doubt regarding the working of the council and integrity of its chairman and members," observed Justice Mandokhail.
"In any case, it was necessary for the Council to have decided the fate of the complaint before retirement of the former CJP, but the needful was not done, therefore, after his retirement, the Council cannot proceed."
Curiously, Justice Mandokhail proceeded to observe that a majority of complaints lodged against judges are undoubtedly frivolous and baseless. Despite that, he expressed the view that the SJC remains constitutionally obligated to decide the fate of these allegations as early as possible.
The Procedure of 2005 has empowered the chief justice, being chairman of the council, to convene a meeting for the purpose of inquiring into the matter, he said.
"Empowering the chairman of the council alone to convene a meeting would make the council subservient the chairman, hence, undermines the independence and authority of the council," observed Justice Mandokhail.
"To ensure independence of the council, it is imperative that the Procedure of 2005 is suitably amended in line with the provisions of Article 209 of the Constitution, to introduce a regular vigilant mechanism for convening a meeting of the Council on a regular interval, for initiating and concluding the inquiry proceedings upon a reference or a complaint by the Council before retirement or resignation of a judge," he recommended.
"Independent, effective and vigilant Council will strengthen the trust and confidence of the citizens of Pakistan in the disciplinary proceedings, involving judges of the Supreme Court, the Federal Shariat Court and of the High Courts."
It will also enable the judges to perform their judicial functions with peace of mind, freely, without any fear or favour and without any external or internal pressure."