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Petitioner: (1) Justice Shaukat Aziz Siddiqui (2) Mr. Justice Muhammad Farrukh Irfan Khan VS Respondent: (1) Federation of Pakistan through Secretary Law and Justice, Islamabad (2) Federation of Pakistan through Secretary Law and Justice, Islamabad and another
Court Name: Supreme Court of Pakistan Judge(s):Mushir Alam, Sh. Azmat Saeed, Sardar Tariq Masood, Maqbool Baqar,
Mazhar Alam Khan Miankhel Title:(1) Justice Shaukat Aziz Siddiqui (2) Mr. Justice Muhammad Farrukh Irfan Khan vs (1) Federation of Pakistan through Secretary Law and Justice, Islamabad (2) Federation of Pakistan through Secretary Law and Justice, Islamabad and another Case No.:CONSTITUTION PETITION NO.29 OF 2017 AND CIVIL MISC. APPLICATION NO.7669 OF 2017 IN CONSTITUTION PETITION NO.29 OF 2017 AND CONSTITUTION PETITION NO.36 OF 2017 AND CIVIL MISC. APPLICATION NO.9965 OF 2017 IN CONSTITUTION PETITION NO.36 OF 2017 Date of Judgment:2018-05-10 Reported As: 2019 P.S.C 773, 2018 SCP 1210 Result: Petition disposed of Judgment SH. AZMA T SAEED, J.- Through this judgment, it is proposed to adjudicate upon Constitution Petitions No.29 and 36 of 2017, wherein common questions of law have been raised. 2. The Petitioner in Constitution Petition No.29 of 2017 is a sitting Judge of the learned Islamabad High Court, Islamabad. The Respondent, Supreme Judicial Council (SJC), is currently inquirin g into allegations of misconduct made against the said Petitioner . In this behalf, the proceedings before the SJC are being held in camera. The aforesaid Petitioner moved an application with the prayer that the proceedings of the SJC be conducted in "Open Court". The SJC vide its Order dated 18.05.2017 dismissed the said application. In the above circumstances, the Petitioner invoked the Constitutional jurisdiction of this Court by filing the instant Constitution Petition bearing No.29 of 2017, inter alia, calling into question the aforesaid Order dated 18.05.2017. The vires of the provisions of the Supreme Judicial Council Procedure of Enquiry 2005, more particularly, paragraphs 7 and 13 thereof have also been challenged. It is claimed that the impugned Order and the aforesaid paragraph 13 of the above-said SJC Procedure of Enquiry 2005, offends against the Fundamental Rights of the Petitioner. 3. The Petitioner in Constitution Petition No.36 of 2017, is a sitting Judge of the learned Lahore High Court and incidentally is also facing an inquiry before the SJC on the allegations of misconduct. Such proceedings too are being held in camera. In the above circumstances, a Constitution Petition bearin g No.36 of 2017 has been filed
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also claiming that the proceedings of the SJC be conducted in "Open Court". Furthermore, it is also prayed that the SJC Procedure of Enquiry 2005 may be declared in its entirety to be unconstitutional. Furthermore, the constitution of the SJC has also been called into question and it is contended that one of the Members is disqualified to participate in such proceedings in view of Article 209(3) of the Constitution of the Islamic Republic of Pakistan, 1973. It is also prayed that all the proceedings taken by the SJC be declared as null and void. 4. In the instant cases, interpretation of the Constitution is obviously involved, therefore, notice under Order XXVII-A of the Civil Procedure Code, 1908 was issued to the learned Attorney General for Pakistan; and for assistance of this Court, two senior and seasoned counsels namely, M/s Shahid Hamid and Munir A. Malik, learned Sr. ASCs were also appointed as Amicus Curies. 5. Mr. Muhammad Makhdoom Ali Khan, learned Sr. ASC appearing on behalf of the Petitioner in Constitution Petition No.29 of 2017 opened his arguments by clarifying that no objection is being raised by him to the constitution of the SJC but his grievance is only limited to the process being employed and the Order dated 03.04.2017. It is his case that two primary questions required adjudication by this Court; firstly , whether the SJC is required by law to conduct an open hearing of the matters entrusted to it; and secondly , whether the SJC Procedure of Enquiry 2005, is unconstitutional, hence, liable to be struck down . As an ancillary to the second question, the learned Sr. ASC contende d that this Court may also consider the possibility of reading down the provisions of the aforesaid SJC Procedure of Enquiry 2005, more particularly , paragraph 13 thereof, requiring a trial in camera. 6. It is further contended by the learned Sr. ASC that though it may have been held by this Court in its earlier judgments that the proceedings before the SJC may not strictly be a right determining exercise but only a fact finding process yet since the matter before the SJC is the alleged misconduct of a sitting Judge of the Superior Court and any findings returned would obviously stigmatized such Judge. Hence, the provisions of Articles 4, 10A and 19A of the Constitution, would be applicable. In this behalf, the learned Sr. ASC also drew the attention of this Court to the provisions of Article 209(8) of the Constitution, which require that the final findings of the SJC would be made public. 7. The learned counsel next contended that the proceedings before the SJC were called into question before this Court in the case reported as Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61). The Petitioner in the said case contested the provisions of holding proceedings in camera and dema nded an open hearing. However , this aspect of the matter was left open and not adjudicated upon as is apparent from paragraph 200 of the judgment. Therefore, this Court must necessarily decide the aforesaid question, having directly arisen in the instant lis. It is further contended by the learned Sr. ASC that even though the SJC may not be a Court but rather a forum akin to a Departmental or Domestic Tribunal, yet the provisions of Article 10A of the Constitution are attracted to the proceedings before it, in view of the judgment of this Court reported as M.C.B. Bank Limited, Karachi v. Abdul Waheed Abro and others (2016 SCMR 1 08). 8. The learned counsel added that it is settled law that proceedings which may adversely affect the rights or reputation of a person, in the normal course, must necessarily be held in an "Open Court" and not by way of secret proceedings. In support of his contentions, the learned Sr. ASC relied upon the judgments reported as Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf (PLD 1963 SC 51), Mairaj Muhammad Khan v. The State (PLD 1978 Karachi 308), Asif Ali Zardari v. Special Judge (Offences in Banks) and 10 others (PLD 1992 Karachi 437), and Mst. Shirin Nazir v. Badruddin Karamali Nazir and another [PLD 1963 (W.P.) Karachi 440]. However, the learned Sr. ASC conceded that in exceptional circumstances even in a criminal or civil trial the proceedings can be held in camera but, he was of the view, that such exceptions are now well defined and settled. It may include matters relating to the State secrets or privacy of persons, more particularly, victims of sexual offences and qua matters pertaining to the mental capacity of individuals, further to avoid scandalizing the institutions. It was his case that none of the aforesaid exceptions were applicable to the instant case or catered for in paragraph 13 of the SJC Procedure of Enquiry 2005.
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The learned counsel also attempted to distinguish the judgment reported as George Meerabux v. The Attorney General of Belize [2005) 2 AC 513] referred to by the SJC in its Order dated 18.05.2017. 9. The learned counsel, however, was of the view that the proceedings before the SJC consist of two stages; firstly the determination whether prima facie any case for proceedings under Article 209 of the Constitution is made out and; secondly the proceedings undertaken by the SJC pursuant to such prima facie determination. The learned counsel contended that the first stage should be held in camera in any event to safeguard the reputation of a Judge against whom malicious or frivolous complaints may have been made but in the second stage, the proceedings must necessarily be held in public, especially if the person whose conduct or capacity is being inquired into so desires to avoid any miscarriage of justice. 10. Mr. Hamid Khan, learned Sr. ASC prefaced his submissions with the contenti on that for all intents and purposes, the conclusions drawn by the SJC sealed the fate of the Judge whose conduct or capacity is being inquired into and no remedy has been provided to him, therefore, for protection of the rights of such Judge a strict criteria needs to be applied. In the above context, it was contended that it is an universally accepted principle of law that proceedings in an "Open Court" is a sine qua non for a fair trial as justice should not only be done but should also be seen to be done. In support of his contentions, the learned counsel referred to the following judgments of the Canadian jurisdiction: 1. A.G. (Nova Scotia) v . Maclntyre, [1982] 1 S.C.R. 175 (183-185-186); and 2. Canadian Broadcasting Corp. v . New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (para 22) 11. It was further contended that in the event of an in camera proceedings such Judge whose matter is before the SJC would be subjected to character assassination through baseless rumors and innuendo. 12. The learned counsel added that the principle of an open trial has been upheld by this Court in the judgments reported as Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 SC 632) and Zulfikar Ali Bhutto v. State (PLD 1979 SC 53). No doubt, it is contended, that there are some limitations to an open trial but, in this behalf, well defined exceptions are set forth in the aforesaid judgments. Said exceptions to the general principle of an "Open Court" hearing are public safety and security , privacy , abusive conduct of the accused, if the nature of the case is such that open hearing would stultify justice itself and to prevent scandalous and scurrilous allegations against the Judges. In the case at hand, none of the exceptions exist nor have been held to exist in the Order dated 18.05.2017, passed by the SJC. 13. The second limb of the arguments of the learned counsel was that the SJC Procedure of Enquiry 2005 is ultra vires to the Constitution and, therefore, non-est in the eye of law, including paragraph 13 thereof pertaining to in camera proceedings. It is the case of the learned Sr. ASC that the SJC is the creation of the Constitution and can only claim such powers as are conferred upon it by the Constitution and such powe rs include the authority to issue a Code of Conduct and summon the witnesses. However , no power to frame rules has been conferred upon the SJC. It is added that where the Constitu tion intended that an Institution created by it should be conferred rule making power , the appropriate enabling provisions stand incorporated in the Constitution. Reference, in this behalf, may be made, inter alia, to Articles 67, 72, 87, 99, 139, 175A(4), 175A(17), 191, 202, 203J and 204(3) of the Constitution. Thus, it is contended, the SJC has no power to make any rule with regard to its procedure, therefore, the SJC Procedure of Enquiry 2005 is in access of the powers available with the SJC under the Constitution, hence, ultra vires thereof. The learned counsel further reiterated that to hold that the SJC has rule making power would require reading words and express ions into the Constitution which is not permitted by law. In support of his contentions, the learned Sr. ASC relied upon the judgments reported as Pir Sabir Shah v. Shad Muhammad Khan , Member Provincial Assembly , N. W.F.P. and another (PLD 1995 SC 66) and In the matter of Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan [(PLD 1957 SC (Pak.) 219)]. 14. In the above context, it was further contended that currently , no rules governing the procedure to be followed by the SJC have been framed in accordance with the Constitution and the law. And such void needs to be supplied by the Parliament as has been done in India through the enactment of "The Judges (Inquiry) Act, 1968". It is further contended by the learned counsel that in absence of such rules or procedure, the SJC is at a "disadvantage". Upon
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being asked to explain as to what he meant, after some hesitation, Mr. Hamid Khan, learned Sr. ASC submitted that the SJC could not conduct any proceeding against a Judge of a Superior Court or any other person in the absence of lawfully framed rules of procedure. 15. The learned counsel further contended that the case reported as The President-Referring Authority v. Mr. Justice Shaukat Ali (PLD 1971 SC 585) cannot be used as a precedent in the lis at hand, as the proceedings in the said case, were conducted when the Constitution stood abrogated. The SJC had been constituted under President' s Order No.14 of 1970 and was conducting its proceedings under the Supreme Judicial Council (Investment of Powers) Order , 1970, President' s Order No.20 of 1970 and the Judges (Compulsory Leave) Order , 1970 the President' s Order No.27 of 1970. Reference in the said case had been filed under Article 128 of the 1962 Constitution read with the Provisional Constitution Order of 1969. With the change in law, the judgment in the case of Mr. Justice Shaukat Ali (supra ) has lost its relevance. It is further contended that the case of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry (supra ) is equally inapplicable in view of the addition of Article 10A of the Constitution. 16. The learned counsel also took exception to rule 7 of the SJC Procedure of Enquiry 2005 to contend that clause (5) of Article 209 of the Constitution requires that the decision to proceed or not to proceed against a particular person was vested with the SJC, while by virtue of rule 7 ibid such powers have been delegated to one Member of the SJC. Hence, the proceedings against the Petitioners initiated in terms of rule 7 ibid are ultra vires and illegal. 17. With reference to the composition of the SJC, it was contended by the learned counsel that one of its Members is himself the subject of the inquiry before the SJC, hence, debarred from being its Member in view of the provisions of Article 209(3) of the Constitution, which cannot be interpreted narrowly and must be given a wider meaning. In support of such contentions, the learned counsel relied upon the judgments of this Court reported as Pir Sabir Shah (supra) and In the matter of Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan (supra) . 18. Mr. Munir A. Malik, the learned Sr. ASC an Amicus Curie was of the view that some of the various issues involved in this case have already been settled by a larger Bench of this Court in the case reported as Chief Justice of Pakistan Iftikhar Muhammad Chaudhry (supra ), holding that the SJC is not a Court. It is at best a fact finding domestic forum set up by the Constitution to look into the conduct and capacity of the Judges of the Superior Courts. The SJC conducts an inquiry as opposed to a trial. Such an inquiry is only a fact finding and not a right determining exercise. It was emphasized that this Court by way of the aforesaid judgment has accepted/approved the interpretation of law as held in the case reported as Mr. Justice Shaukat Ali (supra ), including the view that the SJC Report is not right determining as it is only recommendatory in nature and not binding on the President. In this behalf, reference was also made to the judgments of this Court reported as Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607) and Malik Asad Ali and others v. Federation of Pakistan through Secretary , Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1998 SC 161 ). 19. Unlike Article 209 of the Constitution of the Islamic Republic of Pakistan, 1973 in terms of Article 124 of the Indian Constitution, Article 169 of the Pakistani Constitution of 1956; and Article 317 of the Indian Constitution (relating to the Public Service Commissio n), the inquiry is conducted by a Council or a Committee composed of Judges but not by the Court itself. Furthe rmore, the Indian Supreme Court in the matter of Reference under Article 317(1) of the Constitution of India (1983) 4 SCC 258 at pages 263-64 Para 7 & 8) has held that the findings of this Court under Article 317 of the Constitution are binding. 20. The learned Sr. ASC further contended that even though there is no express power conferred by the Constitution on the SJC to frame its Rules, it would have the "implied power" to regulate its own Procedure. There is no bar in Articles 209 and 210 of the Constitution upon the SJC to lay down its own Procedure, which is just and equitable including for holding in camera proceedings as has been held in the cases of Faqiri Vasu v. State of Utter Pradesh and others (2008) 2 SCC 409), State of Karnataka v. Vishwabharathi House Building Coop. Society and others (2003) 2 SCC 412), Reserve Bank of India and others v. Peerless General Finance and Investment Company Ltd and another (1996)1 SCC 642) and Muhammad Anayet Gondal v. The Registrar, Lahore High
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Court, Lahore and another (2015 SCMR 821). Where a law confers jurisdiction it impliedly also grants the power of doing all such acts and to employ all such means as are essential and necessary for the exercise of such jurisdiction. Therefore, the SJC Procedure of Enquiry 2005 is covered by the doctrine of "implied powers". Without prejudice to the above, it was contended that the SJC Procedure of Enquiry 2005 are mere administrative and internal guidelines and, therefore, strictly not binding on the SJC in view of the cases reported as The State of Assam and another v. Ajit Kumar Sarma and others (AIR 1965 SC 1196) and Punjab Healthcare Commission v. Musthaq Ahmed Ch. And others (PLD 2016 Lahore 237). Thus, the framing by the SJC of the Procedure of Enquiry 2005 is not unconstitutional and in any event are not binding on the SJC. 21. In answer to the question raised as to whether in camera proceedings before the SJC were violative of minimum standards of due process or Article 10A of the Constitution, it was contended, that since the SJC does not determine civil rights but only makes a recommendation to the President, the answer must be in the negative. Furthermore, in camera proceedings have to be distinguished from "secret proceedings" and the minimum standards of due process do not prohibit fair hearing through the in camera proceedings. The laws of many Countries contain provisions for holding judicial accountability proceedings in camera. However , there is no universal consensus on this issue. Judicial accountability through in camera proceedings is not necessarily violation of due process but cannot also be said that it is a "best practice". It is a matter of Constitutional choice depending on the facts and circumstance s of a particular Country . It was contended that the constitutionality of in camera proceedings have been upheld in the following cases, Privy Council Appeal No.9 of 2003 (Belize Judgment) and Land Mark Communications, Inc. v. Com monwealth of Virginia (1978 435 US 829). In India, the Courts have even held that the accused Judge is not entitled to a copy of the Report submitted by the Committee of Judges unless Parliament takes further action on such Report [Sarojini Ramaswami (MRS) v. Union of India and others (1992) 4 SCC 506)]. This, it was added further reinforces the non binding/non-right creating nature of the Committee of Judges. 22. The learned Amicus Curie stated that free access to justice is a Fundamental Right of the people of Pakistan and such a right is dependent upon an independent judiciary. There can be no concept of Independence of Judiciary unless it consists of persons in whose integrity, the people can repose their confidence. The only safeguard, in this behalf, after appointment, is the proceedings under Article 209 of the Constitution, which jurisdiction has very sparingly been exercised in the last 70 years, thus, in order to ensure the continuing confidence of the people in the judiciary, it would perhaps be appropriate that the proceedings of the SJC are conducted in an "Open Court". If the proceedings are conducted in camera, there is a possibility that it may be presumed that an errant Judge has been protected by his peers. 23. Mr. Shahid Hamid, learned Sr. ASC, who is also an Amicus Curie, stated that the SJC is a Constitutional body, the authority whereof is not limited to inquire into the conduct of the Judges alone but includes within its ambit other high officials, like the Chief Election Commissioner and the Members of the Election Commission of Pakistan (ECP), who can only be removed by the SJC in view of Article 215 of the Constitution. The jurisdiction of the SJC, also includes the matters relating to the Auditor General of Pakistan, the Wafaqi Mohtasib and the various other Ombudsmen. The SJC is, therefore, not a domestic forum for the Superior Court Judges only but also a forum for determining whether or not a number of other public officials should continue to hold such Office, if charged with misconduct, etc. 24. With regard to the status of the SJC Procedure of Enquiry 2005, the learne d Sr. ASC stated that the Constitution is a living organic document. The interpretation of its provisions cannot be static and frozen at a particular point of time. A reference was made to Article 218(3) of the Constitution to contend that the said provision does not by itself empower the ECP to make rules authorizing it to give effect to the said provision, however , in the case of Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681), this Court relied upon the text of Article 218(3) of the Constitution alone to hold that the ECP could make the rules itself.
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The above view, it was contended, was clarified and reaffirmed by this Court in the case reported as Workers Party Pakistan through General Secretary and 6 others v . Federation of Pakistan and 2 others (PLD 2013 SC 406 ). 25. The SJC, it was added, is a Constitutional body certainly no less and arguable higher in status than the ECP. The rules made by the ECP to perform its Constitutional duty under Article 218(3) of the Constitution have statutory force. Thus, the SJC Procedure of Enquiry 2005 made by SJC to perform its Constitutional duty under Article 209 of the Constitution should also be deemed to have statutory force. 26. It was also the case of the learned Sr. ASC that the SJC cannot possibly be regarded as a mere fact finding body . Can the President remove a Superior Court Judge notwithstanding the SJC' s Report that he is not guilty of misconduct? Similarly , can the President refuse to remove a Superior Court Judge despite the SJC' s finding that such Judge is guilty of misconduct? The SJC Reports have binding force except perhaps in a rare case where the President is persuaded to take a different view on the basis of material not considered by the SJC. Thus, the procedure followed by the SJC cannot be regarded as a non-statutory internal Rules of Procedure of an administrative forum. It is added that though the SJC Procedure of Enquiry 2005 have statutory force yet its various provisions must be compliant with all the Fundamental Rights. If the SJC Procedure of Enquiry 2005 did not have statutory force it is dif ficult to see why it needs to be compliant with all the Fundamental Rights. 27. It is further added by the learned Sr. ASC that before insertion of Articles 10A and 19A in the Constitution through the 18 Amendment Act, 2010, the Articles 4, 8, 9, 14 and 25 of the Constitution required that every person was entitled to an open trial unless there were compelling national or public interest considerations for a degree of secrecy . Prima facie the provisions of paragraph 13 of the SJC Procedure of Enquiry 2005 that the SJC proceedings shall not be open to public and shall not be reported unless directed otherwise appear to be in conflict with Articles 4, 8, 9, 14 and 25 of the Constitution. It is next added that the right of a Superior Court Judge to hold and continue in office unless it is determined through due process of law that he is physically or mentally incapacitated or guilty of misconduct cannot be regarded as anything other than a civil right. 28. It is also the case of the learned Sr. ASC that the question whether or not a Superior Court Judge is guilty of misconduct or is mentally or physically incapacitated is undoubtedly a matter of public importance, as it pertains to the administration of justice. Thus, the only question is whether the restrictions placed on the public' s right to know by paragraph 13 of the SJC Procedure of Enquiry 2005 is a reasonable…
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