Structure and functioning of Supreme Judicial Council

ISLAMABAD: The five-member Supreme Judicial Council (SJC) chaired by the Chief Justice of Pakistan is the only constitutional forum that has powers to remove judges of superior courts on different charges, but it has rarely taken such extreme action since its creation under Article 209.

Save one old instance of the seventies, there is no example in Pakistan’s history when the SJC removed a judge for misconduct. The SJC proceedings are held in-camera. The forum has some cases pending disposal.

Headed by Chief Justice Mian Saqib Nisar, the SJC consists of two senior most judges of the Supreme Court – Justice Asif Saeed Khosa and Justice Ejaz Afzal Khan – and the chief justices of the Lahore High Court and Balochistan High Court Justice Syed Mansoor Ali Shah and Justice Mohammad Noor Meskanzai respectively, being the senior most high court chief justices among their provincial counterparts.

Clause (3) of this article says if at any time the SJC is inquiring into the capacity or conduct of a judge who is its member, or any of its member is absent or is unable to act due to illness or any other cause, then if such member is a Supreme Court justice, the apex court judge, who is next in seniority, shall act as the SJC member in his place. Same will be the case if such member is the high court chief justice, the high court chief justice, who is next in seniority amongst the chief justices of the remaining high courts will join the SJC.

The 17th amendment brought a significant change in Article 209. Previously, the SJC could process only such matters as were referred to it by the President. Under the amendment, the SJC, besides a reference from the President, may, also on its own account, inquire into the conduct or capacity of a judge.

As per the procedure laid down by the Supreme Court in November 2005, any member of public may bring to the notice of the SJC or any of its members or its secretary, information alleging incapacity or misconduct of a judge. The allegation may be supported by material which is sufficient in the opinion of the SJC to commence enquiry. The person providing such information shall identify himself properly. The information may be received through any mode by the SJC or any of its member, without being restricted to any of the sources such as print or electronic media and written complaint.

Once any information in respect of enquiry into the conduct of a judge is received by any member or the SJC, it shall be presented to its chairman, who shall refer the same to any SJC member to look into it; and to express his opinion in relation to sufficiency or otherwise. If the SJC is satisfied that the information prima facie discloses sufficient material for an enquiry, it shall proceed to consider the same.

The member whom the chairman has referred the information will examine it and ascertain if it discloses specific particulars of misconduct, and provides factual details necessary to form prima facie opinion in respect of the guilt of the judge. If the member forms an opinion that the information does reveal sufficient material to commence enquiry, he shall inform the SJC accordingly and the information shall be placed before the SJC. If the member comes to a conclusion that the information is false, frivolous, concocted or untrue, he shall inform the SJC accordingly and may recommend action against the person who initiated the information.

The SJC chairman may call the meeting of the SJC for discussion and enquiry into the information received. The information in respect of the conduct of a judge shall be placed before the SJC for examination. If the SJC is of the view that before forming an opinion, it should also hear the judge under enquiry, it shall require him to present himself before the SJC. The SJC shall provide him the information and material received against him. If the SJC is of the opinion that it requires more material or seeks additional information before it can form any opinion, it shall direct accordingly.

The SJC may, if necessary, secure the attendance of the person who has provided the information for enquiry into any aspect of the information provided. It may summon any expert and may order any medical investigation by local or foreign expert.

If the SJC decides to proceed against a judge, a show cause notice shall be issued to him along with supporting material calling upon him to explain his conduct within 14 days. The Attorney-General for Pakistan and in his absence a senior counsel of the Supreme Court, instructed by him, shall conduct a reference.