Pakistan's Law for Removal of Superior Courts Judges: Safeguards to Independence of Judiciary v/s Duty of Executive to Probe into Conduct of Judges

Abstract

The story of independence of judiciary starts with the exit of King James II from England consequent to the “Glorious Revolution” of 1688. The subsequent regime of William and Mary was accepted by the people of England with one of the condition, amongst other, that they would respect the tenure of the judges because it was essential to their true independence of mind and of action. This revolutionary achievement, it is said, eliminated the intimidation of the judiciary by the Crown in England for all times to come. In Pakistan, the mandatory age for retirement of Judges is provided in its Constitution. A Supreme Court Judge can serve up to the age of 68 years, and a High Court Judge can serve up to the age of 62 years. Otherwise they can only be removed from office in accordance with the provisions of Constitution. The retirement age for Supreme Court and High Court judges can only be altered by passing of a Constitution Amendment Act (under its Articles 238 and 239) by the parliament by the two-third majority of its both houses respectively. However, things do not end just by concluding that a Constitution Amendment Act is sufficient to alter the tenure of Judges of Superior Courts. There are other important provisions affecting this subject matter, which merit studying. Those are Articles 175 (3) and 209 of Pakistan's Constitution that are discussed in this article. For convenient reading the body of this article has been arranged into seven parts as below. The first part serves as an introduction to concept of independence of judiciary and its nexus to the issue of tenure of judges. The second part identifies the international declarations as to independence of judiciary and tenure of judges that Pakistan has subscribed to. The third part comments on the constitutional scheme for separation of judiciary from executive in Pakistan. The fourth part highlights substantive thresholds, under Pakistan’s law, as to proceedings before the Supreme Judicial Council, when it is called upon (by the President) to provide its opinion on the misconduct of a Supreme Court or High Court Judge. The fifth part analyses procedural thresholds, under Pakistan’s law, as to handling of a complaint alleging misconduct by a Judge as aforesaid. The sixth reviews the definition and scope of misconduct allegation that can be entertained against a sitting Judge as aforesaid, and the seventh part serves as the conclusion to this article. Pakistan must not allow the executive branch to interfere in tenure of the offices of Judges at Superior Courts! … because such interference damages independence of judiciary! … because such interference creates the risk of reducing public confidence in judiciary! … because such interference creates chilling effects on the constitutional guarantee for fundamental right of citizens’ access to justice!