After gaining independence from the British, Pakistan retained the Government of India Act, 1935 until the second constituent assembly gave the country its first Constitution in 1956.

This Constitution provided a mechanism for the removal of a judge of the Supreme Court identical to that of the Settlement Act, 1701 — to petition to the sovereign head for the removal of a judge. However, after the abrogation of the Constitution by General Ayub Khan in 1958, the said mechanism could not find a place in the new Constitution of 1962. Thus, the Supreme Judicial Council (SJC) was born.

It is very interesting to note that since the inception of the 1701 Act, Sir Jonah Barrington remains the only judge in the United Kingdom who has been removed from office. Similarly, retaining the UK model, the Indian Constitution also empowers the houses of parliament to remove sitting judges of the supreme and high courts, only after securing more than two-third of the votes — as a consequence of which, no Supreme Court judge has ever been impeached.

Judges vs the state

It is an undeniable fact that the SJC was conceived by a military dictator. While its establishment may not have been premised on ill-intent, bearing in mind its polemical history, the suggestion of it being antithetical to judicial independence would not be misplaced.

One would assume that this may be credited to numerous military interventions; however, this assumption would not be entirely accurate. That is not to say that military regimes in the past have not abused the enabling provisions of law to prosecute judges of the superior judiciary. A classic example of this would be the reference against Justice Safdar Ali Shah, who had acquitted Zulfikar Ali Bhutto. He was not only compelled to resign but also had to escape to Kabul to save himself from General Ziaul Haq.

Much in the same vein, post-2008, after the civilian setup was restored in the country, the role of the SJC remained questionable. To further substantiate this position, it would be appropriate to highlight two recent cases, both of which are shrouded in controversy — the references against Justice Shaukat Aziz Siddiqui and Justice Qazi Faez Isa.

At the very outset, it is to be noted that both these references are distinct from each other. They were, however, allegedly initiated as a direct consequence of these judges calling into question the role of Pakistan’s premier spy agency.

On the recommendation of the SJC, within a few months of the show-cause notice being issued, Justice Siddiqui was unceremoniously shown the door by President Arif Alvi. On the other hand, the Faizabad dharna judgement, authored by Justice Isa, worried both the government and the establishment.

Eight review petitions were filed against the said judgement — among them was one filed by the Ministry of Defence, which claimed that the judgement adversely affected the morale of the armed forces. As if this wasn’t enough, the government was so incensed that it claimed in its review petitions that the judgement itself constituted “misconduct”, sufficient to justify the judge’s disqualification.

Unsurprisingly, reverting to underhand tactics, aggressive surveillance of Justice Isa was conducted, following which, based on information collected about three properties linked to Justice Isa in the UK, a complaint was filed against him, materialising into a presidential reference.

Taking the law to the television screen

Although the intended objective of the reference could not be achieved, it laid bare the weaknesses within the existing legal framework. Even before Justice Isa was provided a copy of the reference against him, it was leaked to the media. Consequently, a sitting judge of the SC was openly ridiculed, faced a media trial and was brazenly targeted by government ministers.

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Moreover, those responsible, presumably proxies of the powers that be, were not proceeded against for filing a false and frivolous complaint, as provided for in Rule 14 of the Supreme Judicial Council Procedure of Enquiry, 2005 (SJCPE). Ironically, after the ouster of his government, the former prime minister and his team openly admitted that the reference against Justice Isa was a mistake.

As this political battle is gaining traction, with no end in sight, a complaint under Article 209 of the Constitution, has been moved against Justice Mohsin Akhtar Kiyani, senior puisne judge of the Islamabad High Court (IHC). Insipidly, taking a leaf from the same old playbook, the complaint, ostensibly filed by a proxy, was leaked to the press. Rising up to the occasion, Special Adviser to the Prime Minister Ataullah Tarar held a no-holds-barred press conference in which he audaciously repeated the allegations against Justice Kiyani, insinuating that they were established and irrefutable facts.

Palpably, a deliberate attempt is being made to embarrass, defame and hold a media trial of a sitting senior judge of a constitutional court. There is strong apprehension that the new government, along with its powerful acquaintances, is not pleased with Justice Kiyani for dismissing the Tyrian White Case — the judgement of which was taken down from the IHC website moments after it was published.

Needless to say, as per law, judges must be held accountable for misconduct, whereas the removal of a judge on account of physical or mental impairment, should also be enabled by law. Unfortunately for Justice Kiyani, the silence of his own brother and sister judges in the higher courts has emboldened many. Likewise, the failure of the SJC to deter and protect him from deliberately orchestrated media trials has once again been laid bare.

Procedural uncertainties

These accounts raise serious questions on the integrity, competence and fairness of the SJC as an investigative body. Moreover, in addition to what has been stated above, it allows unwarranted discretion to the Chairman of the SJC — the Chief Justice of Pakistan — enabling him to determine which complaints to process and, if at all, when to process them.

This procedural uncertainty, coupled with its dubious application — expeditious at times and at times painstakingly sluggish — is a source of great discomfort for the entire legal fraternity, especially for some judges against whom complaints have been left in the cold storage.

Nevertheless, there are some who benefit from these procedural loopholes, waiting patiently for their retirement, at which point all such complaints against them would become infructuous. Be that as it may, the non-existence of strict and definitive timelines to take up a complaint along with the questionable application of Article 209, continue to be exceedingly prejudicial for the independence of the judiciary.

In light of the pervasive shortcomings of the SJCPE, taking inspiration from the UK and India, it may be appropriate for all stakeholders to re-evaluate and reimagine the prevailing legal framework regulating the removal of superior court judges.

The historical and the developing situation, narrated herein above, may aptly be summed up in the words of Faiz Ahmed Faiz, who said:

bane haiñ ahl-e-havas mudda.ī bhī munsif bhī

kise vakīl kareñ kis se munsifī chāheñ

[Facing those power crazed that both prosecute and judge,

wonder to whom may one turn for defence, from whom can one expect justice?]

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