[News Analysis] Judges can no longer resign their way out of accountability

KARACHI: Judges will no longer be able to evade accountability while keeping all their perks by resigning as soon as a reference is taken up by the Supreme Judicial Council, say legal experts analysing the SJC’s decision on Thursday.

The SJC has held that Supreme Court Justice (r) Mazahar Ali Akbar Naqvi was guilty of misconduct, and should have been fired before his resignation in January this year.

Talking to The News on Thursday, high court advocate and former faculty at LUMS Hassan Abdullah Niazi says that “some aspects of this saga of judicial accountability will likely have enormous consequences” for the judiciary even though a more in-depth understanding can only be formed if the SJC releases a detailed opinion.

But, per Niazi, the main takeaway from the decision is the “precedent that has now been set which states that SJC proceedings, once initiated, can continue against a judge even after they leave the bench” and judges will not be able to “evade accountability while keeping all their perks by resigning as soon as a reference is taken up by the SJC -- as Justice Mazahar Naqvi attempted to do”

For Niazi, “this is a significant step because in the past a vast majority of cases before the SJC would never be concluded simply because the accused judge would retire.”

Advocate of the Supreme Court Hafiz Ahsaan Ahmad Khokhar also points out that this is the first time that we have seen a judge of the superior court having tendered his resignation during SJC proceedings but the SJC still continuing its proceedings under Article 309 of the constitution and then finding him guilty of misconduct and recommending his removal.

Khokhar agrees with Niazi that this opens a new window against judges trying to use resignation to evade such accountability, adding that there “should be open court judicial proceedings for all such applications so the public can access them”.

But there are those who find this case a lot more complicated. Constitutional lawyer Usama Khawar says that it is “While some may rush to label the decision as either good or bad, it is prudent to recognize that its true impact will only be discerned through the lens of history.”

According to Khawar, there are credible concerns within the legal community and among political commentators regarding the underlying motivations behind the disciplinary action with “apprehensions that Justice Naqvi’s alleged corruption may not be the primary driver of the proceedings, but rather his perceived reluctance to toe a particular line.”

Those sceptical of the reasoning behind the decision also feel it raises questions about the balance between judicial independence and external influences. Khawar explains it thus: “While accountability is essential for upholding rule of law and maintaining public trust, it must be pursued in a manner that safeguards against politicization or victimization of judges for their independent stance.”

Hassan A Niazi has a somewhat different opinion regarding this issue. He says that, while a “detailed opinion is crucial so that this case is seen as having been decided on merit, and while some people may see this as the SJC settling old scores, given Justice Naqvi’s close affiliation with Justice Bandial’s group, it is worth clarifying that questions around Mazahar Naqvi’s suitability to be a judge have been raised by members of the bar for some time.”

It may be recalled that in 2020, the Sindh Bar had written to the then Chief Justice Gulzar highlighting some of these issues. Niazi points out that the Sindh Bar had noted “how in 2014 the Supreme Court itself had made observations against Justice Naqvi’s conduct as a judge when it appeared he -- after dismissing two similar applications by the same accused -- would grant the third one based solely on the fact that a different lawyer had appeared before him. I think for some members of the bar, this decision should have come much earlier.”

In fact, says Niazi, this case can also be seen as a signal that the current CJP “has wanted to send for some time: that he is serious about accountability within his own institution.”

But why did judicial immunity from accountability even become a perception so ingrained in our system? Khawar says that this is best explained by our judicial history which has “historically operated within a delicate balance, where judges have been, in theory, seen as guardians against the encroachment of extra-constitutional forces, including the deep state, on democratic processes and constitutional principles. This has often translated, in practice, into a perception of judicial immunity from accountability, which, while bolstering judicial independence, has also posed challenges in ensuring transparency and fairness.”

He adds that “by subjecting Justice Naqvi to disciplinary proceedings and recommending his removal, the SJC has breached the perceived immunity of judges and opened avenues for the scrutiny and potential sanctioning of judicial misconduct.”