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The process

Opinion

June 9, 2019

Judges of the superior judiciary can only be removed from office under Article 209 of the constitution. Given recent events, it is important to understand how the process works and the nature of the proceedings before the Supreme Judicial Council.

There are two relevant legal provisions. First, Article 209 itself. Second, the procedure laid down by the Supreme Judicial Council known as The Supreme Judicial Council Procedure of Enquiry 2005 (the 'SJC Procedure').

Article 209(5) of the constitution provides that if the council or the president are of the opinion, on information from any source, that a judge may have been guilty of misconduct, the president shall direct the council to inquire into the matter or the council may, on its own motion, inquire into the matter. In the case involving Justice Isa, the reports indicate that a reference by the president has been filed. This means that the president and the government have presumably formed an opinion that Justice Isa may be guilty of misconduct and have directed the council to inquire into the matter.

Under the SJC Procedure, the chairman of the council (the CJP) shall refer any information/reference to any member of the council to look into the said information and to express his opinion in relation to sufficiency or otherwise of the information. Only if the council is satisfied that the information prima facie discloses sufficient material for an inquiry will it proceed to consider the same.

If so satisfied, the council undertakes an inquiry. The council may discharge the reference if having undertaken an inquiry in its judgment there is no case to answer. The council must form an opinion at the inquiry stage as to whether on the basis of material before it a show-cause notice should be issued to the judge. If a show-cause notice is issued, the judge will be required to explain his/her conduct within 14 days and thereafter the matter will be heard by the council.

There is nothing in the constitution or the SJC Procedure to indicate the circumstances in which a show-cause notice should be issued. Applying generally accepted principles of jurisprudence adopted by administrative tribunals, a show-cause notice should only be issued if the council is satisfied that absent an explanation there is clear material before it which could form the basis of a finding of misconduct. If such material exists, the judge is required to show cause as to why action should not be taken.

The term “misconduct” is defined in the SJC Procedure as including (a) conduct unbecoming of a judge; (b) in disregard of the Code of Conduct for Judges; or (c) is found to be inefficient or has ceased to be efficient. In essence, it is conduct which would fall below the standards expected from judicial officers or which would undermine confidence in the judge’s ability to honestly and properly decide cases. A parking ticket would not be enough. There must be impropriety impacting performance of duty.

Under the SJC Rules, the attorney general, and in his absence a senior counsel of the Supreme Court, conducts the reference. The proceedings of the council are to be conducted in camera and are not open to the public. Only the findings of the proceedings can be reported. Even the proceedings of the meetings of the council or any other steps that the council may take shall not be reported unless directed otherwise.

The procedure contemplated is first, a complaint or reference. Second, an evaluation as to whether the same discloses sufficient material for an inquiry. Third, an inquiry. Fourth, a show-cause notice. Finally, a decision on the show-cause notice. The matter may be dismissed at any stage if there is insufficient material in the opinion of the Council justifying further action. Following the inquiry, the council may be of the view that a show-cause notice is not justified and may conclude the matter.

The SJC Rules contemplate that there will be no public discussion of a matter pertaining to an allegation of judicial misconduct. Neither the judge nor the allegation should be identified, and the process is meant to be secret. The rationale is that the reputation of the judge and the administration of justice will be tarnished if the judge is eventually acquitted and the reference quashed. In this case, secrecy trumps transparency because it is felt necessary for the administration of justice.

The Supreme Court has held that the council is not a court but a unique constitutional forum more akin to a Domestic Disciplinary Tribunal whose proceedings are administrative in nature. The SJC Procedure contemplates that where a false reference is filed or a reference filed with the sole intention to malign the judge it may direct action against all those who are found to have provided the said information. It is not clear what action can be taken since the SJC is not a court nor do the SJC Rules have any statutory force. All they do is regulate the procedure of the SJC. To the extent that any reference is based on affidavits or sworn testimony, proceedings for perjury could be instituted. Absent that, it would not appear the SJC has any power to punish anyone or to take action against anyone. All it can do is make a report to the president that a judge is guilty of misconduct and is liable to be removed from office.

If the government / the president files the reference and the attorney general acts as prosecutor of the reference, the government is in essence adopting the position that it has lost confidence in a particular judge. If it is unable to persuade the council, this same judge will continue to adjudicate cases involving the government. This casts a shadow on the judicial process. As a litigant, it is very easy to say you have not been provided due process if the judge hearing the matter is someone against whom you formally made an allegation of misconduct.

Sometimes, by way of distraction, the process or people involved in scrutiny are undermined – with little regard for the consequences. This diminishes all our institutions. No nation can flourish where decisions impacting constitutional bodies are taken with less-than-savoury motives.

The writer is an advocate of the Supreme Court of Pakistan and a former additional attorney general of Pakistan.

Email: [email protected]

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