SJC to continue probe against Mazahar

ISLAMABAD: The Supreme Court on Wednesday held that the proceedings against a judge by the Supreme Judicial Council (SJC) will stop even after his resignation or retirement.

A five member larger bench of the apex court headed by Justice Aminuddin Khan announced the verdict in the intra-court appeal (ICA) of the federal government against SC judgement delivered in 2023 in Afiya Shehrbano Zia’s case which held 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 are Justice Jamal Khan Mandokhail, Justice Hassan Azhar Rizvi, Justice Musarat Hilali and Justice Irfan Saadat Khan. The court by a majority 4-1 (Justice Hassan Azhar dissenting) to the extent of appeal being time bared, announced the verdict after hearing to the amici curiae (friends of court).

The court partially allowed the appeals of the government, Afiya Shehrbano Zia, Farhatullah Babar, Afrasiab Khattak, Bushra Gohar and others. “For the reasons to be recorded later, the delay in filing both the appeals is condoned,” the court announced in its short order.

The court ruled that both the appeals are partially allowed to the extent 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 court held that it was the prerogative of the SJC to proceed with the matter accordingly, adding that the judgement is modified to that extent.

“This order is with the majority of four by one disagreeing (Syed Hasan Azhar Rizvi, J.) on the point of limitation as well as on merits,” said the short order.

Earlier, the court after hearing to the arguments of amici curiae, including Muhammad Akram Sheikh, Khwaja Haris, Faisal Siddiqui, Abdul Moiz Jaferi, and Attorney General Mansoor Usman Awan had reserved the verdict.

It is pertinent to mention here that the court on February 12, after declaring the ICA as admissible, had decided to appoint amici curiae to assist it in the matter.

The federation through the Ministry of Law and Justice secretary had filed the ICA under Section 5 of the Supreme Court (Practice and Procedure) Act 2023 read with Article 184(3) of the Constitution against the judgement dated June 27, 2023 delivered in Afiya Shehrbano’s case.

The need for challenging the Afiya Shehrbano judgement propped up after the resignation tendered by Sayyed Mazahar Ali Akbar Naqvi, judge of the Supreme Court, when the SJC was proceedings against the judge on misconduct complaints filed by various lawyers as well as Pakistan Bar Council.

Earlier, during the course of hearing, the AG submitted that the SJC was the only forum for the accountability of the Supreme Court judges.

He submitted that when a complaint of misconduct against a judge is received in the SJC, it was imperative for the council to deliver the final decision while taking into account the aspect of the dignity, transparency and accountability of the judiciary.

Moreover, he submitted that it was also necessary for the independence of the judiciary that when the SJC starts proceedings against a judge, it should be carried out to its logical conclusion.

Mansoor Usman submitted that taking action against a judge for misconduct during service is the responsibility of the SJC, adding that judiciary plays the role of a mediator between the people and government, and the judiciary was the guarantor of fundamental rights, so it should be independent.

For the independence of the judiciary, the AG said that the accountability of the judges was necessary, adding that the SJC should act for the independence of the judiciary because under Article 209, only council had the authority to conduct an inquiry against the judges.

He said that if judges violate the code of conduct, it is not necessary to recommend their dismissal adding that the council can give a leave to the judge for some time, while if there is a complaint against the judge for not observing the time, the council can give a warning instead of dismissal.

The AG submitted that after retirement, judges are appointed to constitutional positions such as chief election commissioner, Sharia Court judges or tribunals.

He further submitted that judges should be held accountable, but the dignity of the Supreme Court should not be diminished by this accountability. Justice Irfan Saadat Khan said that there is an example that Article 209 proceedings were initiated against a judge and ended on his resignation.

Justice Hasan Azhar asked the AG that the matter was from 2019, so why did the Attorney General Office not take any action for five years.

Justice Mandokhail said whether the action against the judge is to be repeated or not, it will be the decision of the council.

Justice Hilali gave an example of the action taken against a judge of the Calcutta High Court of India and said that despite the resignation of the female judge, the council completed the inquiry in the matter.

Justice Irfan observed that an issue is also before them that a complaint was received in the SJC against a serving judge, but the complaint was not processed in the council and the judge retired and went home, while the Supreme Court declared the complaint ineffective on the judge’s retirement.

Justice Mandokhail observed that the SJC has to decide on a complaint against a judge.

Muhammad Akram Shaikh told the larger bench that until the SJC do not give its final decision, the matter does not end but when the council gives its opinion, the matter will comes to an end.

He further submitted that the SJC proceedings should not be terminated by the judge’s retirement minute or resignation.

“If the action on the complaints against the judge ends without effect, then questions will arise on the accountability of the judges and the dignity of the judiciary will be damaged”, Akram Sheikh submitted.

Khwaja Haris, another amicus curiae, submitted before the court that the SJC action under Article 209 of the Constitution is to remove a judge either on misconduct or incapacity but if a judge resigns or retires, then the question of removing him ends.

At this Justice Mandokhail said that there were two reasons for removing the judge -- misconduct or incapacity, adding that if the matter is of misconduct, then it is necessary that the council gives an opinion on it.

It is pertinent to mention here that the SJC on February 15 had recorded statements of witnesses in the complaints filed against Justice Mazahar Naqvi and held that no findings would be given on the matter till the disposal of the ICA, preventing any proceedings against judges who either resigned or retired.

Chief Justice of Pakistan Qazi Faez Isa, being the SJC chairman, had conducted the proceedings on the misconduct complaints against Justice Mazahar. Other SJC members are Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Lahore High Court Chief Justice Muhammad Ameer Bhatti and Balochistan High Court Chief Justice Naeem Akhtar Afghan.