International Islamic University Of Islamabad

SHARIA AND LAW

Total Marks:

Obtained
Marks:

Constitutional history
Of
Pakistan
Pre-Mid assignment = 2
SPR-2020

Student Name: Muhammad Lal

Reg Number: 5033/FSL/LLB/F17

Teacher name: Mr. Yawar khan

Q#1-Critically analyze the Composition, Functions and Powers of the Supreme Judicial Council under the
Constitution of Islamic Republic of Pakistan, 1973?

Historical Background of the Supreme Judicial Council

The Courts are acting for the people to administer justice who have reposed faith in them and the concept
of the Supreme Judicial Council has come from the judicial system in where the people aggrieved ask for
justice and be ensured rule of Law. To this regard Lord Denning said “justice is rooted in confidence and
if the confidence is destroyed right-minded go away thinking that the judge is biased.” So in this
situation an institution like Supreme Judicial Council is necessarily needed to maintain and control over
the judges’ activities and their judicial accountability by enacting a certain code of Conduct for the

Constitutional history of PAK

BS(Sharia & Law) IIUI
 International Islamic University Of Islamabad

SHARIA AND LAW

judges. If the judges become biased somehow the confidence of the people is broken and the courts
proceedings become meaningless.
The second Constituent Assembly of Pakistan drafted and adopted Pakistan’s first Constitution, which
came into force in 1956. A leading account of Pakistan’s constitutional history remarks: ‘Adequate
provisions were made in the 1956 Constitution to ensure the independence of the judiciary so that
“justice could be dispensed in Pakistan in a real and unpolluted form. The life of the 1956 Constitution
was rather short, being suspended and later abrogated by General Ayub Khan following a military coup.
In the infamous Dosso Case1 the Supreme Court declared the coup to have been lawful on the ground that
because it had been successful, it had brought into existence an entirely new legal order. The legality of
this new legal order could not be judged on the basis of 1956 Constitution, which had for all legal
purposes disappeared as a result of the coup (which is referred to as a ‘revolution’ in the judgment).
General Ayub Khan gave Pakistan its second Constitution in 1962. As far as the position of the higher
judiciary was concerned, this Constitution followed the precedent set by the 1956 Constitution. There
was, however, one important difference. The 1962 Constitution provided for the establishment of a
Supreme Judicial Council, consisting of senior judges of the Supreme Court and the High Courts, which
was given the jurisdiction to investigate complaints of misconduct against judges of the superior
judiciary. An Interim Constitution came into force in 1972, replaced a year later by the Constitution of
1973. With respect to the judiciary, the Constitution of 1973 followed the pattern established by the
constitutions of 1956 and 1962.

Basic Concept of Supreme Judicial Council in Pakistan

The accountability of Higher Judiciary is of prime importance because the judges of the
constitutional courts have taken oath to defend, protect and preserve the Constitution of Pakistan. The
Supreme Judicial Council which consists of the senior most judges themselves has a greater
responsibility to see, that the judges of the superior courts remain committed for the Code of Conduct
and thereby remain accountability to the Constitution.
The Constitution has envisaged certain basic and fundamental rights for the people and made the
judiciary the guardian of those rights. In that context it has been rightly said the judges of the higher
judiciary without public accountability may endanger democracy.
The Independence of judiciary does not mean that the absence of responsibility for the action of a judge.
Judicial Independence without judicial accountability may generate both abuse and misuse and hence
judicial independence involves the concept of judicial accountability of the judges. Basically, the
Supreme Judicial Council is the governing authority of the Judiciary by which the judges of the
Constitutional Courts can be controlled over in performing their activities. So, there is an inter-relation
between judiciary and Supreme Judicial Council in Pakistan, such as the Supreme Judicial Council is
formed with the Chief Justice and two other next most senior justice of the supreme court and two senior
most chief Justices of provincial High Courts, they are the body who can look into the the conduct for
the judges as per the code of conduct. The judges who fail to properly observe it and properly perform
their duties, either for physical or mental incapacity, may be removed from their offices per inquiry
conducted by the Supreme Judicial Council and recommendation of for their removal by the President.
But the question is how far the council is independent in inquiring the incapacity of the judges? Is the
council influenced or pressurized by the any other organ or not? Has the Supreme Judicial Council been
able to play a vital role to uphold the dignity of Higher Judiciary in Pakistani Perspective? The aim of
this research Article is to answer these questions.

Supreme Judicial Council of Pakistan

The Supreme Judicial Council of Pakistan is a body of judges empowered under Article 2093 of
the constitution of Pakistan to hear cases of misconduct against judges.

Composition SJC
The composition of the Council is set out in the constitution as:
• The Chief Justice
• The two next most senior judges of the Supreme Court of Pakistan

Constitutional history of PAK

BS(Sharia & Law) IIUI
 International Islamic University Of Islamabad

SHARIA AND LAW

• The two most senior Chief Justices of the provincial High Courts
Where the council is investigating a member of the council he is replaced by the next most senior judge.

Function of SJC
The Supreme Judicial Council of Pakistan is a body of judges empowered under Article 209 of the
constitution of Pakistan to hear cases of misconduct against judges.

Powers of SJC
No judge of any of the five High Courts, the Supreme Court of Pakistan and Federal Sharia
Court or its Appellate Bench of Supreme Court may be dismissed except by the President on the report
of the Supreme Judicial Council. The Council may start proceedings against a judge either by its own
initiative or by reference from the President of Pakistan.
If the Council concludes that the judge is guilty of misconduct and should be removed from office they
can recommend this to the President.
A judge of a court or tribunal subordinate to a High Court may be dismissed by the High Court
concerned.

Q#2- Legality of judgement in the Qazi Faiz Isa Case. Comment

LEGALITY:
Legality can be defined as an act, agreement, or contract that is consistent with the law or state of
being lawful or unlawful in a given jurisdiction.
Before going the summary of the short judgment we must know about the background the case.
Background of the case:
in late May in 2019, reports started circulating regarding references being filed against superior court judges — a
development which was confirmed when Justice Isa approached President Dr Arif Alvi, and complained that
selective leaks to the media amount to his character assassination, thus jeopardising the right to due process and
fair trial.
Qazi Faez Isa write letter to the president, Justice Isa said that he would be obliged if the former could let him
know if it was correct that a reference had been filed against him under Article 209 of the Constitution in the
Supreme Judicial Council (SJC).
The Supreme Judicial Council (SJC) then issued a notice to the federal government through the attorney general
regarding references filed against Justice Qazi Faez Isa and Justice Karim Khan Agha of the Sindh High Court.
The references accused the two judges of concealing their assets and recommended action against them under
Article 209 of the Constitution. Allegations being levelled against the judge for keeping three properties in
London.
Justice Isa through a set of pleas challenged the presidential reference in the Supreme Court and asked that a full
bench be constituted, which was accepted by the then CJP Asif Saeed Khosa.
Summary of Short judgment
The Presidential Reference has been quashed as it should have been unanimously in paragraph 1 of the
judgment. However, the majority judgment has also gone ahead and referred the matter to FBR.
Three judges, Justice Maqbool Jaffar, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi, while
joining in the quashing order have dissented from the judgment in so far as the FBR part is concerned. They have
disagreed with the judgment presumably because of the implications that arise from it.
Legality of judgment:
Legally the short order seems to be sound, though the final judgment will lay down the reasons for it.
We can make a few guesses as to what those reasons will be. In our constitutional scheme the President of
Pakistan generally acts on advice but there are certain Articles of the Constitution where the President acts in his
own discretion and opinion. Article 209 is one such Article of the Constitution which seems to require of the
President to act after making up his or her own mind. Article 211 says that the Supreme Judicial Council’s
actions shall not be called into question in any court. In the landmark Chaudhry Iftikhar case, it was established
that the events leading up to the proceedings at the Supreme Judicial Council are not saved by the Article 211
bar. This is what forms the basis of the judgment. In order to establish that there was any misconduct and
therefore need for a reference, there had to be a key exercise that was not undertaken which was under Section
116 of the Income Tax Ordinance of 2001. This was not undertaken.

Constitutional history of PAK

BS(Sharia & Law) IIUI
 International Islamic University Of Islamabad

SHARIA AND LAW

It is tragic that those in power often commit malfeasance to achieve their ends and such tragic misuse
and abuse of power goes unchecked and unpunished
The question now is whether the reference was malfeasance or misfeasance on part of the president.
Malfeasance would mean that the reference was based on mala fides in fact on part of the President, which is
roughly what malice in fact is. This means that the president, while exercising his powers, did not act in good
faith when the facts did not warrant a reference and the intention was manifestly to do harm. There is also the
possibility that it was malice in law i.e. the president acted without just cause intentionally and therefore there
was misfeasance i.e. wrongful use of authority. Here the President had to make up his mind but did so
nevertheless. Either way the President does not get away from the charge that in applying Article 209 he acted
out of malice i.e. bad intention. It would be interesting to see if this opens up the President to Articles 62 and 63
of the Constitution, which apply to him because the qualifications of the President are the same as that of a
parliamentarian. Does that mean we can expect a petition under Article 184(3) against the President? That door
remains open after the disqualification cases of the last decade under the notorious Article 62(1) f. Whether the
President remains sagacious, righteous and indeed non-profligate after this is a matter that may well be
hammered out in the Supreme Court.
Legally it made sense to refer the matter to FBR to proceed de novo but will the FBR be able to proceed
independently and without political pressure remains to be seen. While the Chairman FBR is required to submit a
report to the Chief Justice, we can be sure that the government will do all it can to use the FBR against the Isa
family. However that too will be malfeasance and depending on which way the wind is blowing, while the realm
of possibility includes fresh SJC proceedings against Justice Isa but the government can also find itself in hot
waters. It would ill-behoove the government and FBR to act with malice of any kind in the matter. The
government would be well advised to proceed with caution and sagacity by allowing the FBR to do its job fairly
and impartially.
It is incredible though that the law and the constitution should be used by the government of the day
to settle personal scores. In the Faizabad Dharna case Justice Isa had nominated amongst others PTI itself as
amongst those actively enabling the rioters. It was the kind of politics that ends up hurting the country but now
the government is attempting to silence him, especially since he is in line to be the Chief Justice of Pakistan. It is
tragic that those in power often commit malfeasance to achieve their ends and such tragic misuse and abuse of
power goes unchecked and unpunished. We are in for another bumpy ride, not the first time in our history and
one fears not the last either. All institutions need to operate within the bounds of the constitution and code of
conduct. It requires selflessness, which is often a virtue that is found lacking in the corridors of power in
Pakistan. In the process it is Pakistan that suffers and as a result we all suffer.
In short:
The judgment was passed by the apex court yet it contained many legal flaws in it. Seven out of ten
judges favored to refer the matter to the apex court and ordered Sarena Isa to establish a money trail.
The properties in question are bought up by the wife of petitioner in 2003 and 2014. According to
article 122(2) of ITO FBR is not entitled to ask about these properties but court has granted this right and indeed
infringed the right of Sareena Isa. Justice Faez demanded to quash the reference on the grounds of malice on the
part of govt. The SC neither acquitted the justice nor convicted him rather took the matter on its hands. Recent
petition filed by Justice Isa on short order of 19 June seeks its cancelation on the same ground that it is invalid to
extend the jurisdiction of a code.
Justice Faiz Isa demanded that the order has actually empowered the executive which already holding grudge
against him. So on this ground the status of short order is suspicious and I hope the court shall rule in favor of
law.

Constitutional history of PAK

BS(Sharia & Law) IIUI