Islamabad:
In the context of the ordinance of the High Court of Islamabad, releasing his judge from the judicial work, the Supreme Court judged that a judge of the same court cannot issue any type of brief and cannot take any measure against another judge of the same court.
“The constitutional system of immunity to the judges of the higher courts is to obtain the independence of the judiciary, which is the command of article 2a of the Constitution. It is for this reason, a judge of the same court cannot issue any type of brief and cannot take any measure against another judge of the same court. Khan Mandokhail, while hearing the case of outrage against the additional registrar, the Judicial Registrar Abbas not to have set a case before a bench in violation of the judicial order.
Nazar Abbas had filed an intra-distribute call against the issuance of the show notice by the bench led by judge Syed Mansoor Ali Shah.
The Committee working under the law of 2023 of the Court and the Supreme Court by the majority formed a bench of six larger members to hear its intra-distribute call.
Judge Shah objected the inclusion of judge Mandokhail and judge Muhammad Ali Mazhar when they themselves had violated the judicial order and withdrew the case from the regular bench.
On January 27, two judges, namely judge Athar Minallah and judge Shahid Waheed, rejected the ICA of Nazar Abbas because of his withdrawal.
However, the four judges, who are the members of the constitutional bench, did not make it possible to withdraw the entire appeal and noted that the question is linked to the interpretation of the Constitution, therefore the appeal is arranged and that the reasons will be issued later.
In January, judge Shah noted that the two SC committees (five judges whose CJP) were responsible for the list of cases before the regular and constitutional benches “illegally” withdrawn a case of the bench and were responsible for the contempt of the court.
Judge Shah, in his ordinance, said that the first committee led by CJ Afridi “illegally” withdrew cases from a bench and transferred it for the examination of the other committee, through an administrative order by annulment of the effect of a judicial order.
“While the second committee, in total, contempt for the judicial order adopted by the regular bench, simply under the management of the first committee, continued and set the case before the constitutional bench on January 27, 2025.
“The two committees were not legally authorized to make administrative decisions dated January 17, 2025 in violation of the judicial order,” he added.
In this context, he said, it seems that the case must continue the members of the two committees.
“However, judicial convenience and decorum require that said question be considered and decided by the complete court of the Supreme Court so that it will be decided with authority once and for all,” explains the order written by Judge Shah.
After almost eight months, the majority judges of the ICA rendered a detailed judgment in which the order of judge Shah was discussed.
SC judgment
Judge Mandokhail asked a question of whether the members of the two committees, who are in practice may be processed under article 204 of the Constitution by their colleagues judges for committing an outrage of this court.
In paragraph 4 of its detailed decision, it stipulates that, under the constitutional position, the sub-article (5) of article 199 of the Constitution grants immunity to the judges of the Supreme Court and the High Courts for acts performed within their judicial and administrative capacity.
“The analogy to provide immunity is to prevent the judge from a court from interrupting jurisdiction and authority by judging and controlling another judge of the same court.
“He protects the judge against any interference from the outside or the institution. He guarantees the integrity and authority of the Court and strengthens the capacity of the judges to exercise their functions gently, to ensure that their decisions are not influenced by the fear of being subject to unfavorable action.
“The concept of immunity is to preserve the authority of the judicial institution, which is crucial for the rule of law and for good administration of justice.”
The court declared that if a judge of the Superior Court could not deliver from brief to another judge of the same Court, how can a judge be given the power to issue an orientation or to obtain procedure under article 204 (2) of the Constitution against a judge in exercise of the same Court and to punish him for having committed an outrage of the Court.
“The allegation of misconduct against a judge of the Supreme Court or a high court cannot be questioned and dealt with under article 209 of the Constitution by the Supreme Judicial Council (SJC).
“The sub-article (7) of article 209 of the Constitution prohibits any other forum from inquiring about the questions of misconduct against a judge of the Supreme Court or a high court. Contribute with article 209, paragraph 7, of the Constitution, consequently, constitutionally unauthorized.”
The court declared that, in the event that during the duration of a case, if the jurisdiction of a court was removed by modification of the Constitution or the law or by new legislation, the court where the case is pending or is treated like the Heurt, it loses its power to take other measures on the issue, therefore, it is therefore necessary to stop the procedure.
“A judge (s) or one (es) cannot order the office or one of the committee to repair a particular case before itself, which is not in its jurisdiction or according to the list is not fixed before said bench and cannot withdraw any questions which is already pending before the delistener.
“The judges are bound by their oath, the code of conduct of judges, the law and the rules. The strict membership of which is essential to maintain the judicial discipline and the fluid functioning of the Court. If each judge of the Supreme Court or the High Court begins to choose and to choose cases of disposition by him, without following the practice and procedure in the public, of their respective courses, of the discipline in the short the victim will be advertising in general. “”
The court said that simply, by placing petitions before the ordinary bench does not mean that it has advanced jurisdiction.
“In all cases, constitutionally, the regular bench has become Functus Office, therefore, should have stopped the procedure, leaving the questions for their disposal by the forum, having competence.”
The court declared that it was the constitutional obligation of the members of the ordinary bench to have obeyed the command of the Constitution, by refraining from continuing further, in particular when the savory lawyer of the petitioners referred to article 191a (3) and (5) of the Constitution, but the scholars of the regular bench opted for the question.
“With great respect, there was no justification for the regular bench for new procedures in the question in violation of the relevant provisions of the Constitution.”
The judgment also indicated that a question arises as to how they decided to make members of the committees.
“Even if not, said order cannot be implemented for the reason, first of all, there was no direction of the regular bench to one or the other of the committee; secondly, the members of the two committees do not have the power to fix the petitions before the regular bench, because by the functioning of the constitution, these petitions were already transferred and were pending before the constitutional bench, before placing the order for the fixing of the petitions before.
“The members of the two committees have no role either in the transfer of petitions to the constitutional bench, nor the power to withdraw them and repair them before the ordinary bench. Under no circumstances, the members of the two committees did nothing that would constitute an act within the framework of article 204 of the Constitution.”
Abuzar Salman Khan Niazi Advocate says that the principle of Nemo Judex in Causa Sua K (nobody can be a judge in question) was firmly supported by the Supreme Court of Pakistan, who judged that even the probability of biased parties.
“Although I totally agree to say that a judge cannot pronounce a brief or a contempt against a colleague judge, the question here is not the legality or the constitutionality of the notices of contempt themselves”
Niazi says that the case had already been settled and that the opinions withdrawn; However, when the case concerning the opinions of contempt against two judges was presented in court, they themselves chose to hear and decide it. By being judged in their own cause, they violated this fundamental principle, making the illegal procedure, Coram non-Judice, and without legal authority under article 10a of the Constitution, “he adds.
Another lawyer wonders when the final order was not disputed, then how the bench could make a judgment.
The order also prohibits a judge to direct the fixing of a case which has not been listed in the list of causes.
