Judges raise legal issues on SJC authority over retired judges

Bench says justice delivery could be affected if judges fear investigations

ISLAMABAD:

Several legal issues were raised by the sitting judges during hearing of a case on Monday, pertaining to the Supreme Judicial Council's (SJC) authority to pursue complaints against retired or resigned Supreme Court judges.

Justice Jamal Mandokhel voiced concern that proceedings against judges could hinder justice delivery, as judges might fear repercussions. He emphasised that judicial immunity existed not for personal benefit, but to safeguard the public's right to justice.

A five-member larger bench, led by Justice Aminuddin Khan heard the appeal of the federal government regarding the SJC proceedings against the retired or resigned judges of the Supreme Court.

Amicus curie Faisal Siddiqui argued that if the Supreme Court Practice and Procedure Act were implemented from October 11, instead of April 21, this appeal could not be heard. However, Justice Khan told the lawyer that he should argue on the main case, rather than on appeal’s admissibility.

Siddiqui replied that he only wanted to draw the court’s attention that the provision of the Supreme Court Practice and Procedure Act about retrospective application had been declared null and void.
He said that ordinary laws did not apply to judges. He argued that action could be taken if there were allegations of corruption against a judge. However, he added that SJC jurisdiction ceased with the retirement of the judge.

Justice Khan asked the question whether that SJC process ended with the judge's retirement. Justice Mandokhel said if he committed a crime as a judge, would his resignation clear him of all the crimes.
Sitting on the bench, Justice Irfan Saadat said that the SJC had disposed of the proceedings against a former chief justice. He then asked the question whether the proceedings could be reopened if the SJC had already given its opinion once.

Justice Mandokhel asked whether chief justice could hold the SJC hostage or could he hear a complaint against himself in the SJC? Siddiqui replied that as per rules, the judge who faced complaint should recuse himself from the SJC proceedings.

Siddiqui further told the bench that inquiry rules were for the sitting judges only. Also sitting on the bench, Justice Mussarat Hilali remarked that the inquiry rules were silent regarding a judge against whom the proceedings were pending.

Siddiqui further said that no one stopped institutions like the National Accountability Bureau (NAB), the Federal Investigation Agency (FIA) or other anti-corruption institutions from corruption investigations against the judges.

Justice Mandokhel remarked that if any institution started proceedings against the judges, would it not put the judges in fear. Siddiqui said that the government could amend the Presidential Order, 1987, for withdrawing the pension and benefits for the judge.

Later, another amicus curie Moiz Jafari started his arguments, saying that if the ordinary laws were applied to judges, the independence of the judiciary would be affected. He added that judges would be under constant fear that the FIA or the NAB might take action against them.

He stressed that any action against judges could be recommended by the SJC otherwise, if the general rules were applied to the judges, every one of them would be sitting before a police inspector on the next day of his retirement.

Jafari made a point that after the resignation or retirement of a judge, the SJC’s recommendation for the removal of the judge became ineffective.

However, another amicus curie Akram Shaikh argued that once the SJC started its proceedings against a judge, it could not end.

Misconduct of a judge and his ability not to be a judge were two different things, Shaikh said, adding that the termination of the proceedings upon the resignation of judge would give the impression that the SJC was dependent on the will of the judge.

The hearing was adjourned till Wednesday (tomorrow).