Justice Shaukat Aziz case: Trial of retired judge to violate Article 195, SC told

ISLAMABAD: The Supreme Court was Wednesday told that if a judge facing proceedings under Article 209 of the Constitution retired as contemplated by Article 195 of the Constitution, continuation of proceedings against him in terms of Article 209 of the Constitution would be in violation of provisions of Article 195.

In pursuance of the court’s January 23 order on the petition of sacked judge of the Islamabad High Court Shaukat Aziz Siddiqui, Khwaja Haris, counsel for former DG ISI Lt Gen (retd) Faiz Hameed and Brigadier (retd) Irfan Ramey filed his concise statement with the apex court.

Haris contended that the constitution did not provide for initiation or continuation of proceedings under Article 209 notwithstanding that a judge has resigned from his office, or has attained the age of superannuation prior to initiation or conclusion of such proceedings.

Thus reading into the constitution any provision which confers upon the Supreme Judicial Council any power, duty or obligation to initiate or continue against a retired judge proceedings under Article 209 of the Constitution would not only be violative of Article 195 as well of Article 209 of the Constitution, it would also tantamount to re-writing of the Constitution by this hon’ble court,” Khwaja Haris submitted.

He submitted that the very purpose of initiating or continuing proceedings against a judge under Article 209 of the Constitution was to ascertain the “professional fitness” of a judge (Re: PLD 2010 SC 61, Para 98 at page 141); as such, the moment he ceases to be a judge, the entire purpose of initiating or continuing proceedings against stands nullified.

“As a matter of fact, if the framers of the Constitution intended that the proceedings under Article 209 of the Constitution should continue even against a retired judge, they would also have stipulated the purpose for doing so, and also conferred on the SJC powers to achieve any such (assumed) purpose. As it is, Article 209 provides for a Supreme Judicial Council as a Domestic Forum only limited to exercise powers for the purpose specified therein,” Khwaja Haris submitted adding that neither the powers so conferred on the council nor the purpose for which the said powers are to be exercised even remotely contemplate initiation or continuation of proceedings against a Judge post his/her retirement.

It is pertinent to mention that on January 23 a five-member larger bench of the apex court, headed by Chief Justice Qazi Faez Isa and comprising Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Hasan Azhar Rizvi and Justice Irfan Saadat Khan, reserved its judgment on the petition of Shaukat Aziz Siddiqui challenging the notification of president of Pakistan terminating his service on the charge of misconduct.

The court after hearing the counsel for the petitioners as well as respondents had sought written formulations from all the counsel. The court had asked whether the Supreme Judicial Council conducted an inquiry, and if the inquiry was not under the law and constitution, then what the results would be.