For SJC, self-accountability is the name of the game

The council has not removed a superior court judge in over 40 years


Hasnaat Malik September 01, 2017
Chief Justice of Pakistan Mian Saqib Nisar. PHOTO: File

ISLAMABAD: As the new judicial year starts on September 11, the process of self-accountability will be a major challenge for the superior judiciary.

The Express Tribune has learnt that the Supreme Court, led by Chief Justice Mian Saqib Nisar, is determined to continue the process of self-accountability, which is being considered one of the biggest challenges it faces.

After the July 28 verdict on the disqualification of former prime minister Nawaz Sharif, superior bars are also urging the superior judiciary to expedite the process of self-accountability as no judge has been ousted by the Supreme Judicial Council since the 1970s.

Likewise, incumbent Chief Justice Saqib Nisar had, in his judgment on the 21st Constitutional Amendment case, observed that no judge of a superior court in Pakistan had ever been prosecuted in a criminal court.

“The judiciary in Pakistan is uniquely positioned. If compared with other judicial institutions around the world, it will be noted that there is no parallel for a judiciary which is appointed by the judiciary and is answerable to the judiciary,” Justice Nisar said.

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Pakistan Bar Council executive member Raheel Kamran Sheikh believes that people are always sceptical when it comes to self-accountability in all institutions, including the judiciary, but it is a constitutional obligation under Article 209, so judges need to make the process effective as long as it is going around holding other institutions accountable.

Sheikh says that self-accountability can only be successful when lawyers’ representatives demand across-the-board accountability within the judiciary, adding that the bars should end the policy of ‘pick and choose’ when it comes to the accountability of judges.

Meanwhile, sources revealed that on September 14, the Supreme Judicial Council (SJC) will take up a complaint of misconduct against a Lahore High Court (LHC) judge. Justice Asif Saeed Khosa has already recused himself from the council for this particular case. Khawaja Haris will appear on behalf of the LHC judge while the attorney general for Pakistan is already on the court’s notice.

According to sources, 34 references against superior court judges have been shortlisted for hearings before the five-member SJC next year. The 34 complaints are against both serving and retired judges.

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Cold starts

Although the previous chief justice of Pakistan, Anwar Zaheer Jamali, as chairman of the Supreme Judicial Council, shortlisted a few cases of misconduct against judges and issued show-cause notices, no trials actually started.

The council is presently considering cases of misconduct against four high court judges — two each from the Islamabad High Court (IHC) and the LHC. The SJC is also hearing a complaint against an LHC judge whose name appeared in the Panama Papers. Likewise, another LHC judge has already tendered his resignation to avoid the possibility of misconduct proceedings being initiated against him.

Recently, the SJC dropped proceedings against a Sindh High Court judge for lack of evidence. “I am directed to convey that the SJC in its hearing of the complaint reference registered as SJC-263…has decided to drop proceedings and has filed the complaint reference,” said a letter sent by the SJC’s secretary to the high court. A copy of the letter is also available with The Express Tribune.

In June, the council dismissed the plea of an IHC judge seeking an open trial for misconduct proceedings against him. Senior lawyer Hamid Khan appeared on behalf of the high court judge.

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The council, while issuing a 12-page order, observed that it is in the larger interest of the judiciary that the proceedings are not conducted in open court, as the issue brought before the SJC and the allegations leveled may ultimately prove false, frivolous or vexatious.

The council observed that the SJC does not determine the civil or criminal liabilities of a judge against whom proceedings are being conducted, so the request for an open trial is also not well-founded.

The order says that it is on account of the sanctity of the institution and dignity of the judges whose matters are looked into by the SJC, that in-camera proceedings are expedient.

The SJC, citing precedent, observed, “The holding of in-camera proceedings is absolutely in line with the principles laid down in the opinions of this court in Justice Shaukat Ali and former chief justice Iftikhar Muhammad Chaudhry’s cases.”

Who is the judiciary accountable to?

According to SJC procedure, any information of misconduct of a judge is presented to the council’s chairman, who in turn refers it to members of the council to investigate or to offer an opinion on the complaint.

If the information is determined to be false or frivolous, the council can also recommend action against the petitioner.

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