ISLAMABAD: Justice Jamal Khan Mandokhail of the Supreme Court has observed that resignation by a judge facing proceedings before the Supreme Judicial Council (SJC) amounts to circumvention or avoidance of accountability enshrined and envisaged under Article 209 of the Constitution.

“And such circumvention of SJC proceedings under Article 209 will result in erosion of public trust in the judiciary,” Justice Mandokhail observed in a detailed note issued on Friday.

On Feb 19, the Supreme Court, in a split 4-1 decision, ruled that proceedings pending before the SJC against superior court judges on misconduct would not abate in the event of resignation or retirement of the respondent judge.

Now in a 17-page note, Justice Mandokhail said the judge who retires or resigns during pendency of SJC proceedings against him should not be allowed to escape the consequences of removal.

Justice Mandokhail says such judges should not be allowed to escape consequences of removal

Referring to a 2023 judgement in the Afiya Shehrbano Zia case, the judge recalled how former chief justice Saqib Nisar sat on a complaint filed against him instead of referring the matter to the SJC by recusing himself.

“Thus the former CJP held the council hostage by not convening its meeting. It was not only his constitutional obligation, but also moral and ethical responsibility to have referred the complaint to SJC by requesting the next senior judge below him to become a member, with further request to SJC to proceed against him accordingly,” Justice Mandokhail observed.

As CJP, Saqib Nisar was burdened with the heavy responsibility of maintaining a high moral and ethical standard by placing himself before the council for his accountability, yet he failed to live up to the expectation, the judge added.

“Thus failure to refer the complaint against him to the council by the former CJP not only resulted in undermining the constitutional provisions, but also amounted to preventing SJC from performing its constitutional function,” Justice Mandokhail regretted.

“It is a fact that during his [CJP Nisar’s] tenure, under his chairmanship, SJC conducted proceedings against some other judges, but withheld the complaint against him.”

“This is a violation of principle of equality regarding accountability amongst the judges,” he emphasised.

Likewise, he said, it was also the responsibility of other members of the council to have had inquired about 15 pending references or complaints against judges of the Supreme Court or high courts.

Unfortunately, he regretted, they also did not vigilantly perform their constitutional duty, which rendered several complaints, including the one against former CJP Nisar, infructuous on account of retirement or resignation of judges.

“This has shattered the confidence of the appellants and the people, with a negative impact upon the mechanism and procedure of inquiry proceedings into the conduct of judges.”

“Had that complaint been taken up and decided in time by the council, before the retirement of the former CJP, there would not have been any violation of the relevant provision of the Constitution nor would have created any doubt regarding the working of SJC and integrity of its chairman and members.”

“The private appellants and the public could have been satisfied and thereby their confidence and trust in the working of the council would not have been shattered. 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 and, therefore, after his retirement, the council cannot proceed,” Justice Mandokhail observed.

Thus, he said, the complaints remained unattended and new ones were also being instituted, which resulted in manifold increase in the number of complaints, adding that during this period, several judges retired or resigned from their offices.

The petition filed under Article 184(3) of the Constitution by Afiya Shehrbano and the present appeals by the government pose a valid question on the mechanism of initiating inquiry and working of the council, the judge noted.

He said the appellants presume that the SJC, by not taking action on the complaints, has facilitated the judges to retire or resign, who were required to be subjected to disciplinary proceedings.

No doubt, he added, a majority of the complaints against the judges are frivolous and baseless, but still it is the constitutional obligation of the council to decide fate of the same as early as possible.

Meanwhile, Justice Aminud Din Khan on Friday observed that the SJC, being an independent constitutional body, has the prerogative to proceed against a judge, who had resigned or retired, in accordance with the Constitution and the law.

Published in Dawn, March 16th, 2024