At the outset, it may be pertinent to mention that, although it is made up of the CJP, two senior-most Supreme Court judges and two senior-most High Court chief justices, the SJC is neither a court nor a tribunal, judicial or otherwise. The SJC is neither conducting nor is it empowered to conduct a trial. The SJC is a board of inquiry with the specific and exclusive authority to inquire into allegations of incapacity or misconduct of judges of the superior judiciary (i.e. the Supreme Court and the High Courts). The difference between a court/tribunal and a board of inquiry is that whereas a court/tribunal can pass a judgment and execute that judgment itself, a board of inquiry can only make a finding and, on the basis of such finding, make a non-binding recommendation to a separate executing authority for further action. It remains the executing authority's discretion to decide on whether or not to take action on the basis of that recommendation. In the case of the SJC, the executing authority is the President of Pakistan. A further distinction between the two is that a court has the power to punish for contempt, whereas a board of inquiry does not. The rationale is simple: since a board of inquiry does not pass binding or executable orders, there can be no violation of such orders, and hence, no contempt. This view is reinforced by the fact that the SJC is not included in the definition of a “court” in Article 204 of the Constitution, which confers upon the Supreme Court and the High Courts the power to punish for contempt. Also, since the SJC is not a court, the inquiries that it conducts do not fall under the category of sub judice matters.
Article 180 of the Constitution prescribes the circumstances in which an Acting CJP may be appointed. Under Article 180, only the senior-most Judge of the Supreme Court of Pakistan can be appointed the Acting CJP if (a) “the office of Chief Justice of Pakistan is vacant; or (b) the Chief Justice of Pakistan is absent or is unable to perform the functions of his office due to any other cause.” There is no provision in Article 180 for the appointment of an Acting Chief Justice of Pakistan in the event that a reference is filed against the CJP.
One of the cardinal principles of natural justice is enshrined in the legal maxim “nemo debet esse judex in propria causa” (“no man shall be a judge in his own cause”). If a reference were to be sent to the SJC against the CJP, it is obvious that, under this legal principle, the CJP, as a member and ex officio Chairman of the SJC, should not sit in judgment of himself. The CJP would have three options: (i) to resign; (ii) to voluntarily go on leave and make himself “absent” within the definition of Article 180(b); or (iii) to refuse to go on leave. If the CJP resigns, the reference is rendered infructious and the matter comes to an immediate end. If the CJP voluntarily goes on leave and makes himself absent, then an Acting CJP may be appointed under Article 180(b) for a limited period of time (in this period of time, as it will be demonstrated later, an Acting CJP cannot preside over the SJC). However, if the CJP were to refuse to go on voluntary leave and make himself “absent”, then a constitutional crisis would ensue for there is no provision in the Constitution that empowers either the President or the SJC, before the completion of an inquiry under Article 209, to either dismiss, suspend, or send the CJP on forced leave or to declare him “non-functional.” If this were the case, then provision would have been made in Article 180 to cater for such an eventuality. Article 180 is exhaustive and provides for all the eventualities in which an Acting CJP can be appointed.
At this juncture, it may be pertinent to mention that, in the current judicial and constitutional crisis, the Federal Law Minister, Mr. Wasi Zafar, has stated that the CJP has been sent on forced leave under Section 2 of the Judges (Compulsory Leave) Order, 1970 as validated by the Validation of Laws Act, 1975 (the “1970 Order”). The 1970 Order is in direct and flagrant violation of Article 209 of the Constitution, which states that “A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article.” All mechanisms for the removal of a judge of the superior courts are exclusively provided for by the Constitution and Parliament does not have power, except through a constitutional amendment, to provide for any extra-constitutional mechanism for the removal, temporary or permanent, of judges belonging to the superior judiciary. Any law that is in contravention of the Constitution is void ab initio, i.e. it is dead on arrival. Therefore, sending the CJP on forced leave under the 1970 Order is blatantly unconstitutional on the touchstone of Article 209.
If the Constitution had envisaged that a reference could be filed against the CJP under Article 209 and bearing in mind the legal maxim that “no man can be a judge in his own cause”, the Constitution would have provided a mechanism that would have allowed either the President or the SJC to “suspend” the CJP or to send him on forced leave or render him “non-functional.” The Constitution would have also provided for a corresponding ground for the appointment of an Acting CJP under Article 180 in the event that the CJP becomes the subject of a reference under Article 209. Such a ground may have been enshrined in a third clause of Article 180 and may have read as follows: “(c) the Chief Justice of Pakistan is the subject of a reference under Article 209.”
Yet no such provision has been made in Article 180. None of the existing grounds provided in Article 180 can even widely be interpreted to include a reference under Article 209. A reference against the CJP under Article 209 does not render the office of the CJP “vacant” under Article 180(a) nor does it make him “absent” under Article 180(b). Nor does it render the CJP “unable to perform the functions of his office due to any other cause.” The latter pertains to mental or physical incapacity, i.e. a disability in the person of the CJP, and not his legal incapacity. Under no circumstances can such a ground be interpreted to include a reference under Article 209 against the CJP. Let us assume, hypothetically, that an acting CJP has the authority to preside over the SJC (which, according to the Supreme Court, he does not). Had this been the case, there would have been a corresponding provision in Article 209 that would have provided for the appointment of an acting CJP in the event that a reference was to be brought against the CJP, who is the ex officio Chairman of the SJC. An important point to note here is that, in such an eventuality, the Chairman of the SJC would not be the ex officio Acting CJP. The Acting CJP would be the ex officio Chairman of the SJC. In other words, even in such a case, the enabling provision for the appointment of an Acting CJP is Article 180, not Article 209. So the absence of an express provision in Article 180 for the appointment of an Acting CJP in the event that the CJP is the subject of a reference under Article 209 is further evidence that the Constitution did not intend for Article 209 to be invoked against the CJP.
Now coming to the question, raised earlier, on whether or not an Acting CJP has the authority to preside over the SJC, the Full Bench of the Supreme Court of Pakistan, in its historic landmark judgment delivered in the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), popularly known as the “Judges’ Case”, held the following:
“We are of the view that Acting Chief Justices are appointed for a short time and for that reason, in the relevant Articles, automatic arrangement is provided particularly in the appointment of the Acting Chief of Pakistan, but no criterion is laid down in the provision of appointment of Acting Chief Justice of the High Courts. In all fairness, the period for such acting appointment should not be more than ninety days during which Acting Chief Justice may perform functions of routine nature excluding “recommendations” in respect of appointment of Judges. We say so for three reasons. Firstly, Article 180, which provides for appointment of the Acting Chief Justice of Pakistan and Article 196, which provides for appointment of the Acting Chief Justice of a High Court, do not specifically provide that they can participate in the consultative scheme of the appointment of Judges as envisaged in the Constitution. Secondly, Acting Chief Justices are supposed to be functioning for a short time and, therefore, it would not be fair to allow them to interfere with policy-making matters and appointments in the Judiciary which should be left for permanent incumbents. Thirdly, Article 209 of the Constitution contemplates the composition of the Supreme Judicial Council which is supposed to be comprised of (a) the Chief Justice of Pakistan, (b) two next senior most Judges of the Supreme Court, and (c) two most senior Chief Justices of the High Courts. In the explanation appointment of Acting Chief Justices is expressly excluded which clearly shows that the intention of the Constitution-makers is that the Acting Chief Justices are allowed to function for a short time and more importance is to be attached to permanent Chief Justices and in the absence of permanent Chief Justices of the High Courts or, even for that matter, of the Supreme Court, the composition of the Supreme Judicial Council becomes imperfect and the Body as such becomes unfunctional.”The above judgment of the full bench of the Supreme Court of Pakistan, which is binding on the SJC, lays down the rule that an Acting CJP cannot preside over the SJC and without the participation of the permanent CJP, the SJC is “imperfect” and, therefore, coram non judice. It also lends credence to the argument that the CJP cannot be the subject-matter of a reference under Article 209.
This article was published in 'The Nation' newspaper on 1 April 2007
