Supreme Judicial Council is in the limelight for some days after President Arif Alvi has sent references to it against 3 judges of the superior courts including Justice Qazi Faez Isa of the Supreme Court of Pakistan and Justice K.K.Agha of Sindh High Court.
It is better as well as advisable to know bit more about the formation of the Supreme Judicial Council , how it works and what the Constitution of the Islamic Republic of Pakistan says about its formation and working.
Articles 209, 210 and 2011 of the 1973 Constitution pertain to the formation of the Council, its power to enforce attendance of persons as well as bar of jurisdiction.
According to Article 209, there shall be a Supreme Judicial Council of Pakistan which shall consist of the Chief Justice of Pakistan, the two next senior most judges of the Supreme Court and the two most senior Chief Justices of High Courts.
It has been explained further for the purpose of this clause relating to the most senior Chief Justices of High Courts, 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, otherwise than as acting Chief Justice, and in case the dates of such appointments are the same, with reference to their dates of appointment as Judges of the High Courts of the Punjab, Sindh, Khyber Pukhtoonkhwah and Balochistan provinces as well as Islamabad High Court.
Furthermore, if at time the Council is inquiring into the capacity or conduct of a Judge who happens to be a member of the Council, or a member of the Council is absent ot is unable to act due to illness or any cause, then if such member is a Judge of the Supreme Court, the Judge of the Supreme Court who is next in seniority and if such member is the Chief Justice of a High Court, the Chief Justice of another High Court who is next in seniority amongst the Chief Justices of the remaining High Courts shall act as a member of the Council in his place.
In casethere is a difference of opinion amongst its members upon any matter inquired into by the Council, the opinion of the majority shall prevail and the report of the Council shall accordingly be expressed in terms of the view of the majority.
About making a reference to the Council, the Constitution inter alia provides in clause (5) of Article 209, substituted by the 18th Amendment of the Constitution i.e. “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 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”.
It is also provided through clause 6 of Article 209 that if after inquiring into the matter so referred or taken upon by itself, the Council reports to the President that 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 the office, accordingly.
Clause 7 of the Article 209 quite categorically and emphatically provides ” A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article.
The Article also provides that the Council shall issue a code of conduct to be observed by the Judges of the Supreme Court and of the High Courts.
Article 210 of the Constitution inter alia provides i.e. ” For the purpose of inquiring into any matter, the Council shall have the same power as the Supreme Court has to issue direction 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”.
Article 211 pertains to bar of jurisdiction and it clearly provides “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 into question in any court.”.
Articles 209, 210 and 211 of the 1973, amended or substituted through amendments to the Constitution from time to time, have been reproduced here quite faithfully and without any uncalled for comments mainly for the information and guidance of the people at large who do not have easy access to the Constitution and its provisions on different matters and institutions such as the Supreme Judicial Council, its formation and working.
