References against judges: Mere information not sufficient, SC told

The standard of conduct of a judge must be higher than that of an ordinary citizen as hundreds of people appear before him on daily basis for the ends of justice.

Justice Umar Ata Bandial said this while heading a 10-member larger bench, which on Wednesday heard the petitions of Justice Qazi Faez Isa and various bar councils and associations against the presidential references against the judges of superior courts.

Hamid Khan, representing Supreme Court Bar Association, and the Secretary LHCBA contended that there has to be a clear red-line regarding the misconduct of judges and it has to be interpreted by the apex court. He argued that there is no definition of misconduct and it has only been mentioned in the Article 209.

The judge is left at the mercy of the Supreme Judicial Council (SJC). He has no right of appeal against the verdict of the SJC. Under Article 184(3) of Constitution, the remedy available to the aggrieved judge is very limited as the jurisdiction of Article 184(3) could be invoked for the implementation of fundamental rights.

Justice Bandial told him to raise these points of legislation and constitution before the Parliament. Hamid Khan submitted that mere information, received from any source, is not sufficient and conclusion should be drawn by the President before sending the reference to the Supreme Judicial Council (SJC).

In Article 209 of Constitution after 17th and 18th Amendments, the formation of SJC and the President was equated. The similar exercise - a preliminary investigation - was needed to be conducted by the President to ascertain the validity of the allegation against the judge of the superior courts before sending the reference.

Hamid Khan argued that the President should have to make sure that the allegations being made and the material collected are made validly by keeping in mind the credibility of the petitioner. This is the duty of the President, the executive and the legislature to protect the independence of judiciary.

He said the President is bound to act on the advice of the prime minister or cabinet only on the administrative matters and not of legislative and the judicial affairs. Under Article 209, he has to form his own opinion independently whether to send the reference against the judge to the Council or not.

Justice Faisal Arab asked it means that under Article 209, the executive function is only to provide the information to the President. Justice Mansoor Ali Shah said that under Article 209, the President has to maintain neutrality that he is not advancing the agenda of executive or anyone and that the executive is not overstepping its jurisdiction.

Hamid Khan argued that a judge from the appointment to his superannuation has a civil right to continue his position. The civil right triggers application of Article 10A, fair trial and due process. Hamid Khan concluded his arguments and now Iftikhar Gilani, the counsel for PHCBA, would present his case.