Naqvi's resignation misses its mark

It is prerogative of SJC to proceed with matter accordingly, reads apex court order

ISLAMABAD:

In a majority verdict that will have implications for former Supreme Court judge Sayyed Mazahar Ali Akbar Naqvi, the apex court has ruled that if the Supreme Judicial Council (SJC) has started misconduct proceedings against a judge, these proceedings will continue even if the judge retires or resigns.

"If proceedings have already been initiated by the SJC against a judge, the same shall not abate on his resignation or retirement, as the case may be, during such proceedings. It is the prerogative of the SJC to proceed with the matter accordingly," said a short order issued by a five-judge larger bench on Wednesday.

The bench led by Justice Aminuddin Khan was hearing an intra-court appeal filed by the government against a Supreme Court verdict that declared that judges who retire or resign do not fall within the ambit of Article 209, which deals with misconduct by superior court judges.

A division bench of the Supreme Court, comprising Justice Ijazul Ahsan and Justice Munib Akhtar, had passed this order last year—on June 27, 2023.

Under the Supreme Court (Practice and Procedure) Act, 2023, an intra-court appeal can be filed against a Supreme Court order. Such appeals are supposed to be filed within 30 days after a verdict.

However, the government filed the intra-court appeal against the Supreme Court ruling on January 23, 2024—almost seven months later—after Justice Naqvi submitted his resignation while the SJC was concluding misconduct proceedings against him on allegations of financial corruption and manipulation of benches.

In its short order, the Supreme Court condoned the delay by the government in filing the appeal while partially allowing it. The order noted that one member of the larger bench—Justice Syed Hasan Azhar Rizvi—disagreed with the majority's decision on the point of "limitation as well as on merits."

Earlier, during the proceeding of the case, Attorney-General for Pakistan (AGP) Mansoor Awan argued that it is the prerogative of the SJC to take action on misconduct committed by a judge during his service. "The judiciary guarantees fundamental rights; therefore, it should be independent," he said.

Awan said independence of the judiciary will be affected if it avoids accountability of judges. He said under Article 209, only the SJC has the authority to inquire against superior court judges.

Also read: ‘Tainted’ SC judge doffs robe to ‘save face’

"It is not necessary to recommend their removal if judges violate the Code of Conduct. If a judge is suffering from a curable mental illness, the SJC can also grant leave to that judge for treatment. It can also admonish a judge who is not punctual," he said.

He said when a complaint is brought before the council, it is necessary to give some opinion on it. Awan said after the retirement of a judge, he may be appointed to constitutional positions such as Chief Election Commissioner, Shariah Court judges, or tribunals.

"It is essential for the council to give its opinion on the allegations against a judge so that appointments can be made on constitutional positions."

The AGP said judges should be held accountable, but this accountability should not diminish the dignity of the Supreme Court. "No other institution can take action against judges. For public trust, the SJC should work transparently," he added.

One of the amici curiae, Khawaja Haris, said with the retirement or resignation of a judge, the SJC's proceedings become meaningless.

“It is not necessary for a judge to resign only because the allegations against him are true; a judge can also resign if he cannot tolerate the ridicule,” he said.

When one of the judges, Jamal Khan Mandokhail, asked if a judge should not give reasons for his leaving the post in his resignation, Haris said such reason should definitely be cited if the law demands it.

“The purpose of Article 209 is to remove a judge from office. If a judge is not in office, then how can the council proceed with the action? If a judge has retired or resigned, then what recommendation will the council make to the president?” he asked.

When Justice Mandokhail questioned whether the SJC should abruptly terminate its proceedings upon resignation of a judge, Haris replied in the affirmative. "For example, if a judge resigns on the 11th and the council resumes proceedings on the 12th, then the judge is no longer present."

Justice Mandokhail said Section 5 of Article 209 states that the SJC can continue proceedings even if a judge is not in office.

“In the case of a judge's resignation or retirement, only the part related to recommending to the president will become irrelevant. Inquiry on a complaint against a judge is necessary. Wouldn't a judge prefer to go home acquitted of the allegations against him?” he noted.

Haris said under the laws of Pakistan, the sentence awarded to a convicted is terminated if he passes away.

When the judge asked as to who can stop the SJC if it decides to take action against a judge, Khawaja Haris replied that the Supreme Court has that authority. He cited the example of Justice Iftikhar Chaudhry case in which the SC stopped the SJC from conducting proceedings.

Another amicus curiae, Akram Sheikh, however, opined that the SJC proceedings should not depend on a judge’s resignation or retirement.

Earlier, Justice Mussarat Hilali, a bench member, cited the example of a judge in Kolkata High Court, noting that misconduct proceedings against the judge did not stop upon her resignation.