The Supreme Judicial Council: Constitutional provisions

The Supreme Judicial Council: Article 209 of the Constitution of the Islamic Republic of Pakistan, 1973, provides for a Supreme Judicial Council of Pakistan The Article says:
209. Supreme Judicial Council: (l) There shall be a Supreme Judicial Council of Pakistan, in this Chapter referred to as the Council.
(2) The Council shall consist of;
(a) The Chief Justice of Pakistan;
(b) The two next most senior Judges of the Supreme Court and;
(c) The two most senior Chief Justices of High Courts.
Explanation: 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, and in case the dates of such appointment are the same, with reference to their dates of appointment as Judges of any of the High Courts.
(3) If at any time the 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 Judge of the High Court, the Chief Justice of another High Court who is next in seniority amongst the Chief Justices of the remaining High outs, shall act as a member of the Council in his place.
(4) 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.
(5) 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.
(a) May be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or
(b) May have been guilty of misconduct, the President shall direct the Council to, or the Council may, on its own motion, inquire into the matter.
(6) 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.
(7) A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article.
(8) The Council shall issue a code of conduct to be observed by Judges of the Supreme Court and of the High Courts.
210. Power of Council to enforce attendance of persons, etc: (1) For the purpose of inquiring into any matter, the Council shall have the same power as the Supreme Court has to issue directions or orders for securing the attendance of any person or the discovery or production of any document; and any such direction or order shall be enforceable as if it had been issued by the Supreme Court.
(2) The provisions of Article 204 shall apply to the Council as they apply to the Supreme Court and a High Court.
211. Bar or jurisdiction: The proceedings before the Council, its report to the President and the removal of a judge under clause (6) of Article 209 shall not be called in question in any Court.
CODE OF CONDUCT FOR JUDGES OF THE SUPREME COURT AND THE HIGH COURTS (Framed by the Supreme Judicial Council under Article 128 (4) of the 1962 Constitution as amended up to date under Article 209(8) of the 1973 Constitution] (First printed in the PLD 1967 Jour.97).
The prime duty of a Judge as an individual is to present before the public an image of justice of the nation. As a member of his court, that duty is brought within the disciplines appropriate to a corporate body.
The Constitution, by declaring that all authority exercisable by the people is a sacred trust from Almighty Allah, makes it plain that the justice of this nation is of Divine origin. It connotes full implementation of the high principles, which ate woven into the Constitution, as well as the universal requirements of natural justice.
The oath of a Judge implies complete submission to the Constitution, and under the Constitution to the law. Subject to these governing obligations, his function of interpretation and application of the Constitution and the Law is to be discharged for the maintenance of the Rule of law over the whole range of human activities within the nation.
To be a living embodiment of these powers, functions and obligations calls for possession of the highest qualities of intellect and character. Equally, it imposes patterns of behaviour, which are the hall-mark of distinction of a Judge among his fellow-men.
In this Code, an attempt is made to indicate certain traditional requirements of behaviour in the Judges of the Superior Courts, conducive to the achievement of a standard of justice worthy of the nation.
ARTICLE IOn equiponderance stand the heavens and the earth. By equiponderance, oppression meaning unjust and unequal burdens is removed. The Judge's task is to ensure that such equality should prevail in all things.
ARTICLE IIA Judge should be God-fearing, law-abiding, abstemious, truthful of tongue, wise in opinion, cautious and forbearing, blameless, and untouched by greed. While dispensing justice, he should be strong without being rough, polite without being weak, awe inspires in his warnings and faithful to his word, always preserving calmness, balance and complete detachment, for the formation of correct conclusions in all matters coming before him.
In the matter of taking his seat and of rising from his seat, he shall be punctilious in point of time, mindful of the courtesies, careful to preserve the dignity of the Court, while maintaining an equal aspect towards all litigants as welt as lawyers appearing before him.
ARTICLE IIITo be above reproach, and for this purpose to keep his conduct in all things, official and private, free from impropriety is expected of a Judge.
ARTICLE IVA Judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends.
A Judge must rigidly refrain from entering into or continuing any business dealing, howsoever unimportant it may be, with any party to a case before him. Should the dealing be unavoidable, he must discontinue his connection with the case forthwith. A judge must refuse to deal with any case in which he has a connection with one party or its lawyer more than the other, or even with both parties and their lawyers.
To ensure that justice is not only done, but is also seen to be done, a Judge must avoid all possibility of his opinion or action in any case being swayed by any consideration of personal advantage, either direct or indirect.
ARTICLE VFunctioning as he does in full view of the public, a Judge gets thereby all the publicity that is good for him. He should not seek more. In particular, he should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law.
ARTICLE VI A Judge should endeavour to avoid, as far as possible; being involved, either on ha own behalf or on behalf of others, in litigation or in matters which are liable to lead to litigation such as industry, trade or speculative transactions.
To employ the influence of his position to gain undue advantage, whether immediate or future, is a grave fault. A Judge must avoid incurring financial or other obligations to private institutions or persons such as may embarrass him in the performance of his functions.
ARTICLE VII Extra-judicial duties or responsibilities, official or private, should be generally avoided. He should equally avoid being a candidate, for arty elective office in any organisation whatsoever.
ARTICLE VIII Gifts are to be received only from near relatives and close friends, and only such as are customary. Everything in the way of favours in consequence of the office must be refused. In accepting any entertainment offered, whether general or particular, care should be taken that its real purpose does not conflict with a Judge's duty to maintain detachment from likely litigants, and from partisan activity.
ARTICLE IX In his judicial work, and his relations with other Judges, a Judge should act always for the maintenance of harmony within his own Court, as well as among all Courts and for the integrity of the institution of justice. Disagreement with the opinion of any Judge, whether of equal or of inferior status, should invariably be expressed in terms of courtesy and restraint.
ARTICLE X In his judicial work a Judge shall take all steps to decide cases within the shortest time, controlling effectively efforts made to prevent early disposal of cases and make every endeavour to minimise suffering of litigants by deciding cases expeditiously through proper written judgements. A Judge who is unmindful or indifferent towards this aspect of his duty is not faithful to his work, which is a grave fault.
INQUIRY PROCEDURE: The 17th Amendment to the Constitution brought a significant change in Article 209 of The Constitution. Prior to the Amendment, the Council could process only such matters as were referred to it by the President. Under the amended Article 209, the Council, besides a reference from the President, may, also on its own account inquire into the conduct or capacity of a Judge of a Superior Court in Pakistan. Soon after the assumption of office, the Chief Justice of Pakistan, convened meetings of the Council wherein the following decisions were taken: -
(1) The council will be institutionalised and made an effective functional forum of accountability;
(2) A committee comprising Mr Justice Rana Bhagwandas, taken that its real purpose does not conflict with a Judge's duty to maintain detachment from likely litigants, and from partisan activity.
ARTICLE IX In his judicial work, and his relations with other Judges, a Judge should act always for the maintenance of harmony within his own Court, as well as among all Courts and for the integrity of the institution of justice. Disagreement with the opinion of any Judge, whether of equal or of inferior status, should invariably be expressed in terms of courtesy and restraint.
ARTICLE X In his judicial work a Judge shall take all steps to decide cases within the shortest time, controlling effectively efforts made to prevent early disposal of cases and make every endeavour to minimise suffering of litigants by deciding cases expeditiously through proper written judgements. A Judge who is unmindful or indifferent towards this aspect of his duty is not faithful to his work, which is a grave fault.
INQUIRY PROCEDURE: The 17th Amendment to the Constitution brought a significant change in Article 209 of The Constitution. Prior to the Amendment, the Council could process only such matters as were referred to it by the President. Under the amended Article 209, the Council, besides a reference from the President, may, also on its own account inquire into the conduct or capacity of a Judge of a Superior Court in Pakistan.
Soon after the assumption of office, the Chief Justice of Pakistan, convened meetings of the Council wherein the following decisions were taken:
(1) The council will be institutionalised and made an effective functional forum of accountability;
(2) A committee comprising Mr Justice Rana Bhagwandas, Mr Justice Javed Iqbal and Dr Faqir Hussain, Registrar, Supreme Court was constituted to prepare draft rules/procedure for initiating adieu and conducting investigation/inquiry;
(3) The Chief Justice, Lahore High Court will prepare a draft to make the Code of Conduct more elaborate and objective;
(4) The Registrar, Supreme Court will send a copy of the Code of Conduct to the Hon'ble Judges of the Supreme Court arid the High Courts for compliance. Pursuant to the above decisions, the committee prepared a draft of the Supreme Judicial Council Procedure of Enquiry 2005, which was approved by the Council It was duly notified and gazetted. Thus, the Council has become fully functional and is entertaining complaints as per the prescribed procedure. The Gazette of Pakistan containing the Procedure of Enquiry reads as follows:-
THE GAZETTE OF PAKISTAN:
-- Extraordinary, Karachi, November 29,2005
PART III:
SUPREME COURT OF PAKISTAN (SUPREME JUDICIAL COUNCIL)
NOTIFICATION No P.Reg.1l3/2005-SJC:- (SUPREME JUDICIAL COUNCIL PROCEDURE OF ENQUIRY 2005) Pursuant to the decision taken by the Supreme Judicial Council, in its Meeting on 24th September 2005, the Supreme Judicial Council is pleased to lay down the following procedure for effective performance of functions vested in it under Article 209 of the Constitution of Islamic Republic of Pakistan.
1. TITLE AND APPLICATION:
(I) The procedure of enquiry shall be called "The Supreme Judicial Council Procedure of Enquiry 2005".
(2) It shall only apply to the Supreme Judicial Council and its proceedings.
2. SCOPE: The Procedure shall provide for effective implementation of Article 209 of the Constitution and regulate all inquiries required to be undertaken and all other matters which need to be addressed there under.
3. DEFINITIONS: In the present Procedure, unless the context provides otherwise, the following expressions used in the Procedure will have the meanings as assigned to them hereunder;
(a) "Any matter", includes all matters and facts associated with the enquiry that the Council may carry out
(b) "Any other source", includes all sources through which information is received in respect of the conduct of a Judge.
(c) "Code of conduct", means the code of conduct issued by the Supreme Judicial Council in terms of Article 209(8) of the Constitution of Islamic Republic of Pakistan.
(d) "Chairman", means and includes the Chief Justice of Pakistan.
(e) "Incapacity", will include all forms of physical or mental incapacity howsoever described or narrated, which render the Judge incapable of performing the duties of his office.
(I) "Conduct", will include series of facts associated with the matter being inquired into by the Council, including the facts which are attributed to the person of the Judge.
(g) "Guilty", will include arriving at an opinion by the Council that a Judge has beat guilty of misconduct.
(h) "Opinion", will include arriving at a conclusion by the Council, that misconduct has or has not taken place.
(i) "Information", includes any material, facts, documentation, photographs, video or audio tapes, affidavits, letters or any other reasonable evidence that has come to the knowledge of any Member of the Council or the Council itself sufficient to initiate an enquiry.
(j) "Enquiry", means the consideration of any matter, in relation to conduct of a Judge, by the Council, or any Member of the Council
(k) "Member", means Member of the Supreme Judicial Council
(l) "Misconduct", includes,
(i) conduct unbecoming of a Judge,
(ii) is in disregard of the Code of Conduct issued under Article
209(8) of the Constitution of Islamic Republic of Pakistan,
(iii) is found to be inefficient or has ceased to be efficient.
(m) "Report of the Council", includes the findings of the enquiry proceedings carried out by the Council including recommendations for the President of Pakistan for removal of the Judge or otherwise.
(n) "Secretary", means the Registrar, Supreme Court or any person appointed by the Council.
(o) "Supreme Judicial Council", means the Supreme Judicial Council as constituted by Article 209 of the Constitution of Islamic Republic of Pakistan.
4. The Headquarters of the Council shall be at Islamabad, but the Council may hold its meeting or enquiry into reference or a complaint at any other place in Pakistan, as the Chairman may deem convenient.
5. Receiving or Information: (1) Any member of public may bring to for notice of the Council or any of its Members or the Secretary, information alleging incapacity or misconduct of a Judge.
(2) The allegation may be supported by material which is sufficient in the opinion of the Council to commence enquiry.
(3) The person providing the said information shall identify himself properly. (4) The information may be received through any mode by the Council or any Member of the Council, without being restricted to any of the following sources such as;
(a) Print or electronic media;
(b) Written Complaint
(5) Information received under sub-pan (4) shall be entered in the Register maintained by the Secretary
6. Cognisance by the Council: Without prejudice to the general requirement of receiving information in the manner provided for above, nothing in this Procedure shall be read to curtail or limit the jurisdiction of the Council to initiate an enquiry against a Judge.
7. Procedure for scrutinising information: (1) Once any information in respect of enquiry 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
(a) 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
(b) if the Council is satisfied that the information prima facie discloses sufficient material for an enquiry, it shall proceed to consider the same.
(2) The Member, to whom the Chairman has referred the information, will examine the same and ascertain if the information so received discloses specific particulars of misconduct, and provides factual details necessary to form prima facie opinion in respect of the guilt of the Judge.
(3) If the Member forms an opinion that the information does reveal sufficient material to commence enquiry, he shall inform the Council accordingly and the information shall be placed before the Council.
(4) If the Member comes to a conclusion that the information is false, frivolous, concocted or untrue, he shall inform the Council accordingly and may recommend action against the person who initialled the information.
8. Enquiuy by the Council: (1) The Chairman may, call the meeting of the Council, for discussion and enquiry into the information received.
(2) The information in respect of the conduct of a Judge shall be placed before the Council for examination.
(3) If the Council is of the view that before forming an opinion, it should also hear the Judge under enquiry, it shall require the said Judge to present himself before the Council. The Council shall provide him the information and material received against him.
(4) If the Council is of the opinion that it requires more material or seeks additional information before it can form any opinion, it shall direct accordingly.
(5) The Council may, if necessary, secure the attendance of the person who has provided the information, for enquiry into any aspect of the information provided.
(6) The Council may summon any expert, where the enquiry is in respect of the incapacity of a Judge and may order any medical investigating by local or foreign expert.
(7) Without prejudice to the foregoing, the Council shall have inherent powers to adopt any procedure specific to the enquiry which is considered by the Council to be just and proper in the circumstances.
9. (1) If the Council decides to proceed against a Judge, a show cause notice shall be issued to him along with supporting material calling upon him to explain his conduct within 14 days.
(2) On receipt of reply from the Judge, Council shall convene its meeting to proceed further with the matter.
10. (1) The Attorney-General for Pakistan and in his absence a senior counsel of the Supreme Court, instructed by him, shall conduct a reference.
(2) The Council may require the Attorney-General for Pakistan or any other counsel to appear and assist the Council in relation to smooth and efficient conduct of its proceedings.
11. Procedure of Council: (1) In the event of a difference of opinion amongst the members of tin Council regarding, further enquiry, granting right of hearing to the Judge concerned, securing attendance of the person providing information and related matters, opinion of the majority shall prevail.
(2) In the event of a difference of opinion amongst the members of the Council whether the Judge concerned is guilty of misconduct, opinion of the majority shall prevail.
12. Report to the President of Pakistan: 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.
13. Proceedings of the Council not to be reported: (l) Proceedings of the Council shall be conducted in camera ~nd shall not be open to public.
(2) Only the findings of the proceedings simll be allowed to be reported.
(3) Proceedings of the meetings of the Council or any other steps that Council may take shall not be reported, unless directed otherwise.
14. Punishment for frivolous information: (l) Whenever the Council finds that the information or evidence provided to it was false in material particulars or wit the sole intention to malign a Judge, or scandalising 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 ha
(2) For this purpose, the Council may direct the Secretary of the Council to pursue the course of action against the offender.
15. Council Secretariat: (1) The Council shall have a permanent secretariat and in order to carry out the affairs and functions, the Council may appoint such officials and staff as deemed fit and proper.
(2) The Council shall have a perpetual seal which shall be retained in the custody of the Secretary.
(3) The Secretary of the Council shall be the custodian of the record and proceedings of the Council.
16. Powers to issue directions: The Council shall have the power to issue any directive, pass any order and prescribe the procedure for achieving the objects
of the Council.
17. This procedure shall, mutatis mutandis, apply to proceedings against other office holders, who can be removed from office in the manner prescribed by Article 209 of to Constitution By order of HCJ/Chairman.
-- Sd/-
-- (Dr Faqir Hussain)
-- Secretary
-- (Supreme Court Report Golden Jubilee Edition 2006.)