ISLAMABAD: The Supreme Court has expressed concerns over frivolous complaints filed against judges to “damage” their reputation.

The remarks were made on Monday by judges who were part of a five-member bench, headed by Justice Aminud Din Khan, which had taken up the federal government’s intra-court appeal (ICA) challenging the 2023 decision in Afiya Shehrbano Zia case.

“We should take care of complaints filed by blackmailers … before the Supreme Judicial Council (SJC) after failing to get a favourable decision, remarked Justice Syed Hassan Azhar Rizvi.

He observed that in most cases, the complainants don’t face any disciplinary action by the Pakis­t­an Bar Council — the regulatory body for lawyers — for “damaging the judge’s reputation”.

Another plea moved against judgement in Afiya Shehrbano Zia case

Justice Jamal Khan Mand­okhel also regretted that jud­ges have to face “an onslaught of unsolicited accusations” if they decide in accordance with the law and the Constitution by disregarding populism.

“This is quite profound,” Attorney General for Pakistan (AGP) Mansoor Usman Awan replied promptly on the judge’s remarks.

Justice Irfan Saadat Khan, another member of the bench, highlighted that while deciding the federal government’s ICA, the court should also determine the fate of pending complaints against judges in SJC where no notices have been issued yet as the respondent judge reached superannuation or has resigned.

The remarks were made during the hearing of the federal government’s ICA against the 2023 order.

Authored by Justice Munib Akhtar, a two-judge bench headed by now former Justice Ijazul Ahsan, had held that judges who retire or resign can’t be held accountable for misconduct as outlined in Article 209 of the Constitution.

The article outlines the composition of the SJC and the process to conduct inquiries and removal of judges.

During the hearing on Monday, Justice Musarrat Hilali wondered about the fate of false complaints against a judge.

Without naming anyone, she cited the case of a judge who had to resign from office when their name got embroiled in a controversy.

The AGP reminded the bench that in its recent meeting, the SJC discussed the option of the Supreme Court inquiring about the conduct of lawyers who file frivolous complaints at the time of their enrolment in the top court.

If the complainants were ordinary citizens, the SJC secretary may consider filing a defamation case or recommend a contempt of court case, the AGP stated.

During the hearing, the bench also decided to appoint amicus curiae and asked the AGP to suggest names.

AGP Awan proffered the names of senior counsel Makh­doom Ali Khan, former AGP Khalid Javed Khan and Khawaja Haris Ahmed.

The bench will finalise a name during the next hearing.

While presenting his arguments, the AGP stated that the federal government was a necessary party in the case since the president does not have any discretionary power to file a reference against any judge.

The president acts on the government’s advice under Article 48 of the Constitution at the time of filing the reference, AGP Awan argued.

However the president can decide to remove or not remove judges as recommended by the SJC following an inquiry.

New plea filed

Later, the Supreme Court issued notice to the AGP on a separate petition moved on behalf of Ms Zia.

The petition argued that the judgement in question had suffered from a grave misinterpretation by limiting the application and ambit of Article 209(6) to those judges who have not retired or resigned.

Thus the scheme of accountability and disciplinary proceedings as envisaged under Article 209(6) has been made superfluous, it added.

The said article states that the president may remove a judge if, after an inquiry, SJC finds the judge guilty of misconduct, and recommends such action against them.

The fresh plea stated that under SJC Procedure of Enquiry, 2005, the council can proceed against a judge even if they resign or retire, since the inquiry proceedings cannot simply stand abated.

But the 2023 judgement contradicted this provision and by doing so permitted judges to “circumvent and short-circuit” their way out of any disciplinary proceedings over misconduct, the ICA contended.

The judgement “seeks to distinguish between the judge who has retired and a judge who resigns for the purposes of applicability of Article 209”.

Published in Dawn, February 13th, 2024