SJC proceedings do not drop on retirement or resignation of judge

ISLAMABAD: The Supreme Court has held that proceedings pending before the Supreme Judicial Council (SJC), which are initiated after the issuance of notice to a judge, do not automatically drop or become infructuous on superannuation or resignation of a judge.

A five-member larger bench of the apex court headed by Justice Amin-ud-Din Khan issued detailed reasons in the intra court appeal (ICA) of the federal government against its judgement delivered in 2023 in the Afiya Shehrbano Zia’s case, holding that judges who retire or resign do not fall within the ambit of Article 209 of the Constitution that determines misconduct of judges of the superior courts.

Other members of the bench included Justice Jamal Khan Mandokhail, Justice Hassan Azhar Rizvi, Justice Musarat Hilali and Justice Irfan Saadat Khan.

On February 21, the bench had held that if the proceedings have already been initiated by the SJC against a judge, same shall not abate on his resignation or retirement, as the case may be, during such proceedings.

The bench had passed the order by a majority of four by one disagreeing (Justice Hasan Azhar) on the point of limitation as well as on merits.

The 11-page detailed reasons authored by Justice Amin-ud-Din held that it is the prerogative of the SJC to proceed with the matter and the proceedings pending before it which are initiated after issuance of notice to a judge do not automatically drop or become infructuous on superannuation or resignation of the judge.

The detailed judgement also includes the separate note of Justice Mandokhail, endorsing the decision of the five-member bench, holding that if the proceedings have already been initiated by the SJC against a judge, same shall not abate on his resignation or retirement, as the case may be, during such proceedings.

The judgement noted that the first and foremost consideration before the bench is that as the SJC is an independent constitutional body, it is the prerogative of the council to proceed with the matter in accordance with the Constitution and the law.

“In the instant case the basic question is whether Article 209 envisages that by resignation of a judge or retirement on superannuation the proceedings which are pending before the SJC will automatically come to end or it is the prerogative of the SJC to proceed with the matter,” the court held.

It noted that the amici curiae who are of the opinion that with the resignation of a judge, proceedings automatically end or become infructuous have banked upon their opinion or argument that when the misconduct proceedings are underway and the judge resigns or is retired, his removal cannot be reported to the president, therefore, there is no need to continue the proceedings whereas the view of the AGP and counsel for the appellants in ICA No. 2 of 2024 as well as Mr Muhammad Akram Sheikh and Abdul Moiz Jaffari is on the basis that there is no clog available in Article 209 that the Council will be having no jurisdiction to proceed with the matter, when the judge retires on superannuation or resigns.

Even reference is made to Sub Article 6(a) read with Sections 16 and 16-A of the Supreme Court Judges (Leave, Pension and Privileges) Order 1997 to state that if the proceedings on the retirement or resignation of a judge are automatically drop then even a complaint of serious misconduct which was underway and visibly proven, the SJC having a solid material with it, if cannot proceed further upon resignation or retirement of a judge, the proceeding as well as the question will remain incomplete and unanswered in case the proceedings are not completed and the opinion of the Council is not reported to the ICAs Nos.1 and 2 of 2024.

The court further noted that it posed a question to the amici curiae, who were having the view that the proceedings end with the superannuation or resignation of a judge, if there are any proceedings of misconduct pending against a judge of the high court and he resigns in order to avoid the proceedings, whether he can be appointed/ elevated as a Judge OF the Supreme Court or Federal Shariat Court etc. thereafter, the answer of this query was ‘yes’, he can be appointed.

The further question was, if upon completion of proceedings there is a report of misconduct with the president whether in that case the judge of a high court who resigns can be appointed as judge of Supreme Court or Federal Shariat Court etc., the answer was that if the matter is brought in the knowledge of the Judicial Commission constituted under Article 175-A then he may not be appointed as judge of the Supreme Court or the Federal Shariat Court, said the detailed judgement.

The court held that it had noted that at the time of hearing of petition filed by the appellants of ICA No. 2 of 2024, the judge had already been retired against whom complaints filed by the said appellants were pressed, though the complaint was filed against the judge when he was a chief justice but unfortunately the complaint could not be placed before the SJC and after the retirement of said judge, when it was placed before the SJC same was dismissed as having become infructuous.

The court noted that the main consideration before the two-member bench while hearing the constitution petition was that the SJC has declared the complaint as having become infructuous, therefore, mainly the emphasis of the court was upon the said point whereas it was not a case before the court that after considering the complaint some steps were taken in the complaint i.e. issuance of notice to the judge against whom complaint was filed or any reply or the response to the complaint, not it was the question before the court that during the pendency of the complaint after issuance of notice by the SJC the effect of retirement of a judge or resignation but the effect of the impugned judgement is that even if the complaint is pending after taking cognisance by the SJC, it abates on retirement of a judge or resignation, therefore, federal government was aggrieved and filed the appeal, on which point we agree with the appellant.

“So far as other prayers like passing of direction to the SJC as prayer B in the original petition and prayer C are concerned, we are of the view that the SJC can consider all these points or same may be taken in any other suitable case as we are dealing with the matter in appeal when without any notice the original constitutional petition was dismissed by the two-member bench of this court in limine,” the detailed judgment concluded.

In his separate note, Justice Mandohail held that a person who chooses to become a judge has a notion in mind that upon his elevation, he must be God fearing, trustworthy, honest; he has to maintain and enforce high moral and professional standards of conduct, in order to preserve his integrity and ensure independence to serve justice.

He said that the questions framed by the apex court on 12.02.2024 are answered as under: A. Whether pending proceedings before the SJC do not stand abated on account of retirement and resignation of a judge?

“My answer to this question is “No”. Proceedings, once initiated by the council, shall not abate upon the retirement and resignation of a judge,” Justice Mandokhel said.

Similarly, the judge answered in negative the question as to whether a judge who retires or resigns during pendency of proceedings against him/ her before the council should be allowed to escape the consequences of removal.

The judge, however, replied in affirmative to the question as to whether resignation by a judge during pendency of proceedings against him/ her before the Council is tantamount to circumvention/ avoidance of accountability enshrined and envisaged under Article 209 of the Constitution.

Justice Mandokhail also replied in affirmative to the question as to whether circumvention of proceedings under Article 209 of the Constitution would result in erosion of public trust in the judiciary. Referring to the accountability of judges, he held that the public has a right to expect that of him and if he does not choose to impose such a standard on himself, he should not accept judicial appointment.

He noted that the Prophet Muhammad (PBUH) said that judges are of three types, one of who will go to paradise and two to hell. The one who will go to paradise is a man who knows what is right and gives judgement accordingly; but a man who knows what is right and acts tyrannically in his judgement will go to hell; and a man who gives judgement for people when he is ignorant will go to hell.

The judge noted that even otherwise, a judge is appointed for the interest of general public and his judicial conduct is a matter of great public interest, adding that without the trust and confidence of people, judiciary cannot exist.

“Therefore, the purpose of inquiring into the conduct of a judge while in office, is to ensure accountability, to preserve the integrity of judicial process, maintain public trust and confidence in the judiciary,” Justice Mandokhail noted.