He says abolition, not mandatory retirement, is justified where public trust is lost
Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
Stressing that public trust is the cornerstone of the judiciary, the Supreme Court ruled that a judge whose reputation is judged to be bad cannot continue to exercise judicial office, even if a specific act of corruption has not been conclusively proven.
The decision came in an eight-page judgment written by Justice Shahid Waheed while reinstating a notice of dismissal of a judicial officer.
A three-member tribunal, headed by Justice Waheed, considered whether a judicial officer found to be of disrepute, even if not convicted of a specific act of corruption, could be continued in service and whether compulsory retirement could be a legally sustainable alternative to his removal.
Answering these questions in the negative, the court held that integrity occupies a central place in judicial service and that the retention of a judge becomes impossible once public confidence in his character is lost.
“For a judge, integrity is binary because the people’s trust in the judiciary is the cornerstone of an Islamic welfare state,” the judgment said.
The Court observed that judges are bound by a “code of chivalry” requiring essential qualities beyond legal knowledge and professional skills.
“Legal knowledge and skills are of course their fundamental attributes. But this intellectual equipment alone is not sufficient for the proper exercise of their functions. They must also be endowed with the moral virtue of impartiality, which is in fact the very lifeblood of their judicial life,” specifies the judgment.
The Court emphasized that judges are the place where abstract principles of law become a reality experienced by citizens.
“The judge is the point where the abstraction of the law becomes a lived reality. The parties do not come to discuss the laws, but to hear a human conscience invested with a judicial function. If this conscience is doubted, the law itself becomes suspect,” notes the judgment.
The judiciary further observed that the judiciary derives its authority not from force but from legitimacy, which rests on two fundamental pillars: competence and integrity.
“Competence can be tested in judgments. Integrity is tested by reputation,” the court said.
The judgment warns that even a legally sound decision could lose its credibility if it was handed down by a judge whose reputation has been tarnished.
“A judge can make a sound law, and yet if his name bears a stain on the public mind, the judgment will be received with suspicion,” he said. The Court held that the ethical standards expected of judges go beyond simply preventing wrongdoing.
“Ethically, the judicial office requires more than the absence of wrongdoing. It requires the presence of impeccable character. The standard for a judge is not ‘not guilty’ but ‘impeccable’.”
The judgment explains that unlike elected officials, judges exercise their power without political accountability and often without immediate oversight, which makes public confidence in their integrity essential.
“The only check is the trust of the people. Therefore, the retention of a judge becomes impossible once his reputation is found to be bad,” the court said. She further observed that judicial institutions require not only actual integrity but also the appearance of integrity.
“The judicial institution requires not only integrity, but also the appearance of integrity,” the judgment adds.
Referring to Islamic principles governing public service, the court noted that authority is considered a trust (amāna) which must be exercised with justice and fairness.
The bench then addressed the question of sanction, examining whether compulsory retirement was an appropriate sanction for a judicial officer whose reputation had been deemed tarnished.
According to the judgment, the guiding principle for determining the sanction is proportionality, requiring that the sanction correspond to the seriousness of the fault and the harm caused.
The court ruled that the real harm in such cases was the loss of public confidence in the justice system. “The judicial officer in the present case, by compromising his impartiality, not only lost the public trust but also strangled his judicial career,” the judgment said.
She observed that once public trust in the integrity of a magistrate is broken, the damage extends beyond the individual concerned and affects the rule of law itself.
“The moment public confidence in the integrity of the magistrate was shattered, the fracture affected the entire structure of the rule of law, undermining the integrity of the judicial institution itself. His continuation in office had become incompatible with the interests of the institution,” the court said.
The judgment draws a clear distinction between compulsory retirement and discharge from service, describing the difference as substantive rather than merely semantic.
“Mandatory retirement may, in appropriate circumstances, be imposed when the objective is to eliminate deadwood or when maintenance is no longer administratively feasible,” we observe.
However, the court ruled that mandatory retirement cannot be used in cases involving judges of disrepute, because such an outcome would allow them to leave office with benefits despite the damage to public trust.
“This cannot under any circumstances be imposed on a judge of bad reputation, as allowing him to retire with social benefits would suggest that his reputation is negotiable, which would defeat the very purpose of the sanction,” the judgment said.
The bench concluded that removal is justified when a judge’s conduct undermines both personal integrity and the morality of the institution, thereby undermining public confidence in the judiciary.
“Accordingly, removal becomes justified when the conduct impairs the integrity of a judge and the morality of the institution and undermines the public trust,” the court ruled.
Criticizing the approach taken by the court in this case, the Supreme Court observed that it had failed to appreciate the distinction between compulsory retirement and dismissal.
“It appears that the Court overlooked this distinction: when a disreputable or corrupt judge is removed from office, the judicial institution begins to heal because a specific tumor has been excised,” the judgment concludes.
