The Supreme Court (SC) has held that only the Supreme Judicial Council (SJC) can investigate allegations of misconduct against judges of the apex court and high courts, it emerged on Wednesday.
The observation was made in a detailed verdict, issued on Tuesday, a copy of which is available with Dawn.com, in a case pertaining to the contempt proceedings[1] against Additional Registrar (Judicial) Nazar Abbas.
Three Supreme Court judges had initiated contempt proceedings against the senior staff member in January for not fixing a case regarding the jurisdiction of regular benches. The case pertained to whether regular benches of the Supreme Court could determine the constitutionality of Article 191A of the Constitution, under which the Constitutional Bench was established after the 26th Amendment.
The detailed verdict issued today, authored by Justice Jamal Khan Mandokhail, said that by virtue of holding a constitutional position, sub-article (5) of Article 199 of the Constitution granted immunity to SC and high court judges for acts performed within their judicial and administrative capacity.
“The constitutional scheme of immunity to the judges of the superior courts is to secure the independence of the judiciary, which is the command of Article 2A [Objectives Resolution to form part of substantive provisions] 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.”
The verdict further said: “It is well settled that a judge of the Supreme Court or of a high court is not answerable to a judge of the same court. 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 [contempt of court] of the Constitution against a sitting judge of the same court and punish him for committing contempt of court?”
The detailed order observed that the superior judiciary were generally protected by judicial immunity for their judicial work and administrative functions with respect to the affairs of their respective courts.
However, it added that this protection was not absolute as it did not shield them from the consequences for misconduct, which was a matter of judicial administration or discipline.
It said that allegations of misconduct against superior court judges could only be dealt with under Article 209, which pertains to the powers of the SJC, by the council itself.
“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,” the order noted.
The order said the “intention” of the law was “evident” that it never intended to permit a judge of a court to take any action against a judge of the same court. “Thus, no action for the contempt of court could lie against judges of the SC and of high courts by their fellow judges, respectively,” it added.
It said the superior judiciary possessed the same status and power within its hierarchy and no one was superior or inferior to issue a direction against or punish another.
The order pointed out that permitting the superior judiciary to initiate contempt proceedings against each other would “militate against the necessity of maintaining a high degree of comity amongst them”.
“The maintenance of cordial relations amongst members of the superior judiciary is important for the smooth functioning of courts. Issuing a process of contempt of court by a judge against his fellow judge would create internal conflicts, grievances and grudges amongst themselves. There would be anarchy and justice system would crumble … hence, will erode public trust. No legal system can permit the judicial system to collapse,” the order said.
Justice Syed Mansoor Ali Shah and Justice Aqeel Ahmed Abbasi had withdrawn[2] the contempt notice against Abbas on Jan 27 and referred the matter to Chief Justice of Pakistan (CJP) Yahya Afridi to deliberate whether a full court was needed to decide if contempt proceedings were needed against two committees of the apex court — the regular committee constituted under Section 2 of the SC Practice and Procedure Act, and the constitutional committee set up under Article 191(A)(4) of the Constitution.
Section 2 of the 2023 act deals with the constitution of the benches and states that every cause, appeal or matter before the SC will be heard and disposed of by a bench constituted by the three-judge committee, consisting of the CJP, the next most senior SC judge and a SC judge nominated by the CJP from time to time.
On the same date, a six-member bench comprising Justices Mandokhail, Muhammad Ali Mazhar, Athar Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed and Musrrat Hilali had disposed of Abbas’s intra-court appeal[3] requesting the court to quash the contempt proceedings initiated by the two-judge bench.
The directions made in the judgement of the two-judge bench had left the members of the six-judge bench to wonder how a smaller bench could hold judges of the appellate bench in contempt without even following the procedure meant for contempt of court.
References
- ^ contempt proceedings (www.dawn.com)
- ^ withdrawn (www.dawn.com)
- ^ intra-court appeal (www.dawn.com)