Only SJC can take action against judges: SC

ISLAMABAD:

Against the backdrop of the Islamabad High Court's order restraining its judge from judicial work, the Supreme Court has ruled that a judge of the same court cannot issue any kind of writ nor can take any action against another judge of the same court.

"The constitutional scheme of immunity to the judges of the Superior Courts is to secure independence of the judiciary, which is the command of Article 2A of the Constitution. It is for this reason, a judge of the same court cannot issue any kind of writ nor can take any action against another judge of the same court. Reliance in this behalf is placed on the case of Muhammad Ikram Chaudhry," says an 11-page detailed judgement authored by Justice Jamal Khan Mandokhail while hearing the contempt case against SC Additional Registrar Judicial Nazar Abbas over his failure for not fixing a case before a bench in violation of the judicial order.

Nazar Abbas had filed an intra court appeal against the issuance of the show notice by the bench led by Justice Syed Mansoor Ali Shah.

The committee working under Supreme Court Practice and Procedure Act 2023 by majority formed a six members larger bench to hear his intra court appeal.

Justice Shah had objected the inclusion of Justice Mandokhail and Justice Muhammad Ali Mazhar as they had themselves violated the judicial order and withdrew the case from the regular bench.

On January 27, two judges namely Justice Athar Minallah and Justice Shahid Waheed dismissed Nazar Abbas's ICA on account of his withdrawal.

However, the four judges, who are the members of the Constitutional Bench, in a short order did not allow to withdraw the whole appeal and noted that as the matter is related to the interpretation of the Constitution, thereforem the appeal is disposed and the reasons will be issued later.

In January, Justice Shah had noted that both the SC committees (five judges including the CJP) were responsible for listing cases before regular and constitutional benches "illegally" withdrew a case from the bench and are liable for contempt of court.

Justice Shah in his order said the first committee led by CJ Afridi "unlawfully" withdrew the part-heard cases from a bench and transferred it for the consideration of the other committee, through an administrative order by undoing the effect of a judicial order.

"While the second committee, in total disregard of the judicial order passed by the regular Bench, simply in pursuance of the direction of the first Committee, went ahead and fixed the case before the Constitutional Bench on 27 January 2025.

"Both the Committees were not legally authorized to take administrative decisions dated 17 January 2025 in violation of the judicial order," it added.

Against this background, it said, it appears that the matter has to proceed further against the members of the two committees.

"However, judicial propriety and decorum demand that the said question be considered and decided by the Full Court of the Supreme Court so that it is authoritatively decided once and for all," says order written by Justice Shah.

After almost eight months, majority judges in the ICA has issued detailed judgement wherein Justice Shah's order has been discussed.

SC judgement

Justice Mandokhail posed a question that whether members of both the committees, who are sitting judges could be proceeded under Article 204 of the Constitution by their fellow judges for committing contempt of this court.

He in para 4 of his detailed ruling states that by virtue of holding constitutional position, Sub-Article (5) of Article 199 of the Constitution grants immunity to judges of the Supreme Court and of high courts for acts performed within their judicial and administrative capacity.

"The analogy for providing immunity is to prevent a judge of a court from misusing jurisdiction and authority by judging and controlling a fellow judge of the same court.

"It protects the Judge against any interference from outside or within the institution. It safeguards the integrity and authority of the court and boost the ability of Judges to perform their duties smoothly, to make sure that their decisions are not influenced by fear of being subjected to any adverse action.

"The concept of immunity is to preserve the authority of the judicial institution, which is crucial for the rule of law and for proper administration of justice."

The court said that if a judge of the superior court cannot issue a writ to another Judge of the same court, how can a judge be given power to issue a direction or initiate proceedings under Article 204(2) of the constitution against a sitting judge of the same court and punish him for committing contempt of court.

"The allegation of misconduct against a judge of the Supreme Court or of a High Court can only be inquired into and dealt with under Article 209 of the Constitution by the Supreme Judicial Council (SJC).

"Sub-Article (7) of Article 209 of the Constitution bars any other forum from inquiring into matters of misconduct against a Judge of the Supreme Court or of a High Court. This is a substantive provision and salient feature of the Constitution. Initiating contempt proceedings against a person may require probe, inquiry or trial, leading to punishment. Under such circumstances, the process of contempt of Court against a Judge under Article 204(2) of the Constitution would be in direct conflict with Article 209(7) of the Constitution, hence, constitutionally not permitted."

The court said that in case during the pendency of a matter, if jurisdiction of a court is taken away through amendment in the constitution or law or through new legislation, the court where the matter is pending or is treated as part-heard, it loses its authority to take any further action into the matter, hence, must stop proceedings.

"A Judge(s) or a Bench(es) cannot direct the office or either of the Committee to fix a particular case before itself, which is not within its jurisdiction or as per the roster is not fixed before the said bench nor can withdraw any matter which is already pending before another bench. Only the bench which is seized with the matter or has partly heard it, can delist it.

"Judges are bound by their Oath, the Code of Conduct of the Judges, the law and the rules. Strict adherence whereof is essential for maintaining judicial discipline and smooth functioning of the Court. If every Judge of the Supreme Court or of a High Court starts picking and choosing cases for disposal by him, without following the practice and procedure in vogue, of their respective Courts, the discipline in the Court will be damaged, which will erode the public trust and the ultimate sufferer will be the public at large."

The court said that merely, by placing files of the petitions before the regular bench does not mean that it got the jurisdiction to proceed with the matter.

"In any case, constitutionally, the regular bench became functus officio, therefore, should have stopped the proceedings, leaving the matters for their disposal by the forum, having jurisdiction."

The court said that it was the constitutional obligation of the members of the regular bench to have obeyed the command of the constitution, by refraining themselves from proceeding further into the matter, especially, when the learned counsel for the petitioners made a reference to Article 191A(3) & (5) of the Constitution, but the learned members of the regular bench opted to proceed into the matter.

"With great respect, there was no justification for the regular bench for further proceedings into the matter in contravention of the relevant provisions of the Constitution."

The judgement also said that a question arises as to how they decided to proceed against members of the committees.

"Even otherwise, the said order cannot be implemented for the reason, firstly, there was no direction from the regular bench to either of the Committee; secondly, members of both the Committees have no power to fix the petitions before the regular bench, as by operation of the Constitution, those petitions already stood transferred and were pending before the Constitutional Bench, prior to passing the order for fixation of the petitions before it.

"The members of both the Committees have no role either in transferring the petitions to the Constitutional Bench, nor had the power to withdraw them therefrom and fix them before the regular bench. In any circumstance, members of both the Committees did nothing which would constitute an act falling within the ambit of Article 204 of the Constitution."

Abuzar Salman Khan Niazi advocate says that the principle of nemo judex in causa sua k(no one can be a judge in his own cause) has been firmly upheld by the Supreme Court of Pakistan, which has held that even the likelihood of bias vitiates proceedings.

"While I fully agree that a judge cannot issue a writ or contempt notice against a fellow judge, the issue here is not the legality or constitutionality of the contempt notices themselves"

Niazi says that the matter had already been settled and the notices withdrawn; yet, when the case concerning contempt notices against two judges came before the Court, they themselves chose to hear and decide it. By sitting in judgment over their own cause, they violated this fundamental principle, rendering the proceedings illegal, coram non judice, and without lawful authority under Article 10A of the Constitution", he adds.

Another lawyer wonders when the final order was not challenged then how the bench could pass judgement.

The order also bars a judge to direct the fixation of a case which has not been listed in the cause list.