By Justice Markandey Katju-
(Justice Markandey Katju is a former Judge, Supreme Court of India, and former Chairman, Press Council of India. The views expressed are his own)
A great deal of discussion and controversy, which has gone viral on the media in Pakistan, is about two judges of the Pakistan Supreme Court, Justice Mazhar Ali Akbar Naqvi and Justice Ijaz ul Ahsan, who have recently resigned.
I am not going into the question in detail as to why they did so. It is said there were allegations of corruption against Justice Naqvi, while Justice Ijaz ul Ahsan, who was in line to become the next Chief Justice of Pakistan in October, was aggrieved by the dictatorial and arbitrary behavior of Chief Justice Qazi Faez Isa. It is also being said that the Chief Justice of Pakistan Qazi Faez Isa is behind these allegedly forced resignations, as he had a personal grudge against them, as well as against former Prime Minister Imran Khan who had recommended to the President of Pakistan to institute proceedings against Qazi Faez Isa before the Supreme Judicial Council in respect of his wife’s assets in England.
Be that as it may, the question that now arises is whether the Supreme Judicial Council of Pakistan, constituted under Article 209 of the Pakistan Constitution, and consisting of the Chief Justice of Pakistan, the 2 seniormost Supreme Court judges, and the 2 senior most High Court Chief Justices, can continue proceedings against these 2 judges who have resigned?
I have seen the comments of many persons on YouTube including well-known Pakistani journalists like Hamid Mir and Matiullah Jan, who have opined that proceedings before the Council can continue.
I am afraid these persons, portraying themselves as legal experts, have not even cared to read Article 209(6) of the Constitution of Pakistan which states:
“If, after inquiring into the matter, the Council reports to the President that it is of the opinion,
(a) That the Judge is incapable of performing the duties of his office or has been guilty of misconduct, and
(b) That he should be removed from office, the President may remove the Judge from office.”
It can be seen from the above that Article 209(6) uses the word ‘Judge’. Now a judge who has resigned is not a judge at all, and becomes an ordinary citizen. So proceedings before the Supreme Judicial Council automatically abate once a judge ceases to be a judge, either because of retirement, or death, or resignation.
There is no provision in Article 209 for continuing proceedings thereafter, since the purpose of Article 209(6), that is, to remove a judge who has committed misconduct from office, has been achieved. Once a judge retires, dies or resigns he ceases to be a judge, and hence proceedings before the Supreme Judicial Council automatically terminate, for he is no longer a judge.
If there were corruption allegations against a judge who has resigned, then criminal charges can be levied against him under the relevant provisions of the Pakistan Penal Code or any other relevant law, and he can be prosecuted in court. Even if there was immunity for him for some gross misconduct while in office, that immunity comes to an end when he relinquishes office. For instance, President Trump of USA is now being prosecuted for misconduct during office, though he had immunity while in office.
In most countries like UK and India a Judge can be removed from office for misconduct by impeachment by Parliament. But after impeaching him Parliament cannot proceed further against him, and becomes functus officio so far as this matter is concerned, and has to leave the matter of the charges against him to the courts of law under the relevant provisions of the Penal Code or other law.
The Supreme Judicial Council is only a substitute for the procedure of impeachment in other countries, and it cannot arrogate to itself powers which it does not have.
It is obvious that those people in Pakistan who have given their opinion that proceedings can be continued by the Council against these judges who have resigned have not read Article 209( 6 ) of Pakistan’s Constitution, but have gone by their hunches and moral indignation, as if these are substitutes for the law.
