Working of SJC under Constitution
THE Supreme Judicial Council (SJC) is a highest body of judges empowered under Article 209 of the Constitution of Pakistan to hear cases of misconduct against the Superior Court judges. All judges of the Supreme Court of Pakistan and High Courts are custodians of the Constitution, with powers to interpret the Constitution and providing justice to all citizens and for upholding the rule of law.
The mandatory age for retirement of Superior Court Judges is provided in the Constitution of Pakistan. A Supreme Court Judge can serve up to the age of 68 years, and a High Court Judge can serve up to the age of 62 years. Otherwise they can only be removed from office in accordance with the provisions of Article 209 of the Constitution. The retirement age for Supreme Court and High Court judges can only be altered by passing of a Constitution Amendment Act (under its Articles 238 and 239) by the Parliament by the two-third majority of its both houses respectively. The Constitution has also expressed that a Judge of the Supreme Court or of a High Court shall not be removed from the office except as provided in Article 209 of the Constitution.
The Supreme Judicial Council is comprised of Chief Justice of Pakistan as its Chairman, two most senior Judges of the Supreme Court and two most senior Chief Justices of the High Courts. The Constitution has also explained in Article 209 of the Constitution that for the purpose of this clause, the inter se seniority of the Chief Justices of the High Courts shall be determined with reference to their dates of appointment as Chief Justice. As per Article 209 (8) of the Constitution the Council shall issue a code of conduct to be observed by Judges of the Supreme Court and of the High Courts.
Presently, the Supreme Judicial Council is headed by Mr Justice Umar Atta Bandiyal and its other members are Qazi Faez Isa, Judge Supreme Court, Mr. Justice Sardar Tariq Masood, Justice Ahmed Ali Sheikh Chief Justice Sindh High Court and Justice Muhammad Ameer Bhatti Chief Justice Lahore High Court. The Registrar Supreme Court is working as a Secretary of the Supreme Judicial Council.
Article 209 (5) of the Constitution empowers the Supreme Judicial Council that if, on information from any source, the Council or the President is of the opinion that a Judge of the Supreme Court or of a High Court is incapable of properly performing the duties of his office by reason of physical or mental incapacity or has been guilty of misconduct, the President shall direct the Council to or the Council may, on its own motion inquire into the matter.
As per Article 209 (3) of the Constitution, if at any time the Supreme Judicial Council is inquiring into the capacity or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or any other cause, then (a) if such member is a Judge of the Supreme Court, the Judge of the Supreme Court who is next in seniority below the Judges referred to in paragraph (b) of clause (2), and (b) if such member is the Chief Justice of a High Court; the Chief Justice of another High Court who is next in seniority amongst the Chief Justices of the remaining High Courts, shall act as a member of the Council in his place.
According to Article 209 (4) of the Constitution if, upon any matter inquired into by the Council, there is a difference of opinion amongst its members, the opinion of the majority shall prevail, and the report of the Council to the President shall be expressed in terms of the view of the majority, and if under Article 209 (6) of the Constitution after inquiring into the matter, the Council reports to the President that it is of the opinion that the Judge is incapable of performing the duties of his office or has been guilty of misconduct and that he should be removed from office, the President may remove the Judge from office.
The Supreme Judicial Council for the purpose of inquiring into any matter shall have the same powers as has the Supreme Appellate Court, to issue directions or order for securing the attendance of any person or the discovery or the production of any document and any such direction or order shall be enforceable. The Supreme Judicial Council has also made “The Supreme Judicial Council Procedure of Inquiry 2005” regarding its procedure for effective performance of functions vested in it under Article 209 of the Constitution. Once any information in respect of inquiry into the conduct of a Judge is received by any Member or the Council, it shall be presented to the Chairman of the Council, who; shall refer the same to any Member of the Council to look into the said information and to express his opinion in relation to sufficiency or otherwise of the information, and if the Council is satisfied that the information prima facie discloses sufficient material for an inquiry, the matter shall proceed to consider the same.
The Chairman of Supreme Judicial Council can call the meeting of the Council, for discussion and inquiry into the information received, and the information in respect of the conduct of a Judge shall be placed before the Council for examination, and if the Council is of the view that before forming an opinion, it can also hear the Judge under inquiry and shall require the said Judge to present himself before the Council. The Council shall also provide the said judge the information and material received against him. The proceedings of the Council shall be conducted in camera and shall not be open to public, and only the findings of the proceedings shall be allowed to be reported.
The Procedure of Inquiry 2005 also stated that if the Council in its meeting, on conclusion of the proceedings forms an opinion, that the Judge concerned has been guilty of misconduct or incapacitated in the performance of his duties properly, it shall express its views accordingly and the same shall be communicated by the Chairman to the President as a Report of the Council for action under Article 209(6) of the Constitution of Islamic Republic of Pakistan.“The Supreme Judicial Council Procedure of Inquiry 2005 also prescribed that whenever the Council finds that the information or evidence provided to it was false in material particulars or with the sole intention to malign a Judge, or scandalizing the Court or to undermine it in any form whatsoever, it may direct action against all those who are found to have provided the said information, or evidence as the case may be.
—The writer is practicing Advocate of Supreme Court. He has earlier served as Chairman Customs, Excise and Sales Tax Appellate Tribunal, Senior Advisor Federal and Tax Ombudsman.
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