Resignation or retirement does not terminate proceedings of Judicial Council: Supreme Court

The Supreme Court of Pakistan said in the decision on the petition related to the action against the retired judges of the Supreme Court that ‘When the Supreme Judicial Council starts the action, the action on resignation or retirement cannot end.’

A five-member bench of the Supreme Court delivered a four-one verdict on Wednesday. Justice Hasan Azhar Rizvi disagreed with the majority decision.

A five-member larger bench headed by Justice Aminuddin heard the government’s appeal seeking continuation of the Supreme Judicial Council proceedings against the retired judges.

Effects of the Supreme Court decision

Former Supreme Court judge Justice Mazahir Naqvi resigned due to allegations of financial irregularities in the Supreme Judicial Court.

If the action of the Supreme Judicial Council is proved against the judge, the Council recommends to the President to remove the concerned judge from office. But after Mazahir Naqvi’s resignation, legal questions arose that what could be the future of Supreme Judicial Council proceedings against him?

Because a two-member bench of the Supreme Court had ruled in June 2023 that no action could be taken against the retired judge in Surat. In the case, complaint information against former Chief Justice Saqib Nisar was sent to the Supreme Judicial Council and the Council did not act on the complaint against him.

A constitutional petition was filed in 2020 for non-action against Saqib Nisar and the judgment was issued in 2023.

An appeal was filed against the June 2023 decision under the Supreme Court Practice and Procedure Act to seek legal resolution of the issue.

Hearing capacity

At the hearing on Wednesday, Attorney General Mansoor Usman argued that it is the authority of the Supreme Judicial Council to take action on misconduct committed during the service of a judge. Judiciary plays the role of mediator between the people and the government. Judiciary is the guarantor of fundamental rights and therefore it should be independent. Accountability of judges is necessary for the independence of the judiciary. If accountability is objected to, it will affect the independence of the judiciary.

He further said that the Supreme Judicial Council should be self-motivated for the independence of the judiciary. Under Article 209, only the Supreme Judicial Council has the power of inquiry against judges. If judges violate the code of conduct, it is not necessary to recommend their removal. If a judge is suffering from mental illness, it is possible to treat it. The council may grant leave to a judge for a certain period of time based on treatable diseases. It is not necessary to dismiss.

The Attorney General said that if there is a complaint against a judge for not keeping time, the council can issue a warning instead of dismissal. If a complaint comes before the council, it is necessary to give an opinion on it. After retirement, judges are appointed to constitutional posts like Chief Election Commissioner, Shariat Court Judges or Tribunals. It is necessary that the council gives its opinion on the accusation against the judge so that the appointment to the constitutional posts can be made. Judges should be accountable, but this accountability should not reduce the prestige of the Supreme Court. No other body can take action against judges. A judge can be prosecuted on a complaint related to his tenure of service. Supreme Judicial Council should work transparently for public trust.

Justice Irfan Saadat remarked that ‘there is an example where Article 209 proceedings were initiated against a judge and ended on his resignation. If a reference comes against a judge and the Supreme Judicial Council has not given notice, will it be over?’

Justice Hasan Azhar Rizvi said that ‘this matter is from 2019, so why did the Attorney General’s Office not take any action for five years?’ While Justice Jamal Mandukhel remarked that ‘it will be the council’s decision whether to repeat the action against a judge or not.’

Justice Musarat Hilali inquired that ‘if a judge resigns in the middle of the proceedings of the Supreme Judicial Council, what will happen? In India, the woman judge of the Calcutta High Court retired during the inquiry, but the proceedings against her were continuing.

Judicial assistant Akram Shaikh said, “I am of the opinion that the action of the Supreme Judicial Council should not depend on the resignation of the judge.” When calling a council meeting is the authority of the chairman, the responsibility is also on the chairman.

Justice Jamal Mandukhel said that ‘we have two important points in front of us, one point is that once the council has taken notice of the complaint, will it end with the resignation or retirement of the judge? The second point is that after the retirement of a retired judge, a fresh reference can be taken up?

Judicial assistant Sheikh Akram said that ‘it cannot be that a judge retires and after 10 years a complaint is raised and action is taken against him.’

Justice Irfan Saadat said that the case of Aafia Shahrbanu is not a dispute over the resignation or retirement of a judge. What should be done if it has been declared ineffective?’

Another judicial assistant, Khawaja Haris, argued that the action of the Supreme Judicial Council becomes meaningless with the retirement or resignation of a judge. It is not necessary for a judge to resign because the allegations against him are true. He can also resign if he can’t bear it.’ On this, Justice Jamal Mandukhel inquired that ‘Shouldn’t the judge explain the reasons for his resignation?’

The judicial assistant replied that ‘If the law obliges the judge to give reasons for resignation, then it is necessary to give. The purpose of Article 209 is to remove the judge from office. May be? If the judge has retired or resigned, what will the council recommend to the president? For example, if the judge resigns on the 11th and the council takes action on the 12th, then the judge is not there.’

Justice Jamal Mandukhel explained to the judicial assistant that ‘Article 209 clause 5 states that the council can act whether the judge is in office or not, in the case of the judge’s resignation or retirement, only the recommendation to the president will end. An inquiry will be necessary on the complaint against him, what will be the result will be seen later, won’t the judge want him to go home acquitted of the charges against him? The court has to decide according to the law and not on the whim of the judge. If the Supreme Judicial Council decides to take action against the judge, who can stop it?’

The judicial assistant said that ‘under the Penal Code of Pakistan, if a convicted person dies, his sentence ends. The Supreme Court has the authority to stop the council from proceeding. I restrained the council from proceeding, if a judge commits a crime, the general laws apply to him as well.’

On these arguments of the judicial assistant, Justice Musrat Hilali remarked that ‘Are you a judicial assistant or a lawyer?

Khawaja Haris said in response that ‘there has always been the same position that what is written in the constitution and law should not be deviated from.’