IN THE SUPREME COURT OF PAKISTAN 
  
 
(Original Jurisdiction) 
 
 
 
 
PRESENT: 
 
 
MR. JUSTICE SH. AZMAT SAEED 
 
 
MR. JUSTICE MUSHIR ALAM 
 
 
MR. JUSTICE MAQBOOL BAQAR 
 
 
MR. JUSTICE SARDAR TARIQ MASOOD 
 
 
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL 
 
 
CONSTITUTION PETITION NO.29 OF 2017 AND CIVIL 
MISC. APPLICATION NO.7669 OF 2017 IN CONSTITUTION 
PETITION NO.29 OF 2017 
 
  
  
    AND 
 
CONSTITUTION PETITION NO.36 OF 2017 AND CIVIL 
MISC. APPLICATION NO.9965 OF 2017 IN CONSTITUTION 
PETITION NO.36 OF 2017  
 
 
Const.P.29/2017 
 
Justice Shaukat Aziz Siddiqui Vs. 
Federation 
of 
Pakistan 
through 
Secretary 
Law 
and 
Justice, 
Islamabad 
 
 
 
CMA.7669/2017 in 
Const.P.29/2017 
 
Justice Shaukat Aziz Siddiqui Vs. 
Federation 
of 
Pakistan 
through 
Secretary 
Law 
and 
Justice, 
Islamabad 
 
 
 
Const.P.36/2017 
 
Mr. Justice Muhammad Farrukh 
Irfan 
Khan 
Vs. 
Federation 
of 
Pakistan through Secretary Law and 
Justice, Islamabad and another 
 
 
 
CMA.9965/2017 in 
Const.P.36/2017 
 
Mr. Justice Muhammad Farrukh 
Irfan 
Khan 
Vs. 
Federation 
of 
Pakistan through Secretary Law and 
Justice, Islamabad and another 
 
 
For the Petitioner (s) 
(in Const.29/2017) 
: Mr. Muhammad Makhdoom Ali 
Khan, Sr. ASC 
Mr. Hamid Khan, Sr. ASC 
Mr. M.S. Khattak, AOR 
 
  
Const.P.29 of 2017, etc. 
2 
For the Petitioner (s) 
(in Const.P.36/2017) 
: Mr. Hamid Khan, Sr. ASC 
Mr. Hassan Irfan, ASC assisted by 
Mr. Ajmal Toor, Advocate & 
Ms. Khadija Yasmin Bokhari, 
Advocate  
 
  
On Court Notice on 
behalf of Federation 
: Mr. Ashtar Ausaf Ali, 
Attorney General for Pakistan 
assisted by Barrister Asad Rahim 
Khan, Advocate and 
Mirza Moiz Baig, Advocate 
Mirza Nassar, DAG 
 
  
Amicus Curie 
: Mr. Shahid Hamid, Sr. ASC 
Mr. Munir A. Malik, Sr. ASC 
 
  
Date of Hearing 
: 13th 14th 27th & 28th March, 2018 
 
JUDGMENT 
  
 
 
 
 
SH. AZMAT SAEED, J.- Through this judgment, 
it is proposed to adjudicate upon Constitution Petitions 
No.29 and 36 of 2017, wherein common questions of law 
have been raised. 
2. 
 
The Petitioner in Constitution Petition No.29 of 
2017 is a sitting Judge of the learned Islamabad High 
Court, Islamabad. The Respondent, Supreme Judicial 
Council (SJC), is currently inquiring into allegations of 
misconduct made against the said Petitioner. In this 
behalf, the proceedings before the SJC are being held in 
camera. The aforesaid Petitioner moved an application 
with the prayer that the proceedings of the SJC be 
conducted in “Open Court”. The SJC vide its Order dated 
18.05.2017 dismissed the said application. In the above 
Const.P.29 of 2017, etc. 
3 
circumstances, the Petitioner invoked the Constitutional 
jurisdiction 
of 
this 
Court 
by 
filing 
the 
instant 
Constitution Petition bearing No.29 of 2017, inter alia, 
calling 
into 
question 
the 
aforesaid 
Order 
dated 
18.05.2017. The vires of the provisions of the Supreme 
Judicial Council Procedure of Enquiry 2005, more 
particularly, paragraphs 7 and 13 thereof have also been 
challenged. It is claimed that the impugned Order and 
the aforesaid paragraph 13 of the above-said SJC 
Procedure 
of 
Enquiry 
2005, 
offends 
against 
the 
Fundamental Rights of the Petitioner.  
3. 
 
The Petitioner in Constitution Petition No.36 of 
2017, is a sitting Judge of the learned Lahore High Court 
and incidentally is also facing an inquiry before the SJC 
on the allegations of misconduct. Such proceedings too 
are being held in camera. In the above circumstances, a 
Constitution Petition bearing No.36 of 2017 has been 
filed also claiming that the proceedings of the SJC be 
conducted in “Open Court”. Furthermore, it is also 
prayed that the SJC Procedure of Enquiry 2005 may be 
declared 
in 
its 
entirety 
to 
be 
unconstitutional. 
Furthermore, the constitution of the SJC has also been 
called into question and it is contended that one of the 
Const.P.29 of 2017, etc. 
4 
Members 
is 
disqualified 
to 
participate 
in 
such 
proceedings in view of Article 209(3) of the Constitution of 
the Islamic Republic of Pakistan, 1973. It is also prayed 
that all the proceedings taken by the SJC be declared as 
null and void.  
4. 
 
In the instant cases, interpretation of the 
Constitution is obviously involved, therefore, notice under 
Order XXVII-A of the Civil Procedure Code, 1908 was 
issued to the learned Attorney General for Pakistan; and 
for assistance of this Court, two senior and seasoned 
counsels namely, M/s Shahid Hamid and Munir A. 
Malik, learned Sr. ASCs were also appointed as Amicus 
Curies.  
5. 
 
Mr. 
Muhammad 
Makhdoom 
Ali 
Khan, 
learned Sr. ASC appearing on behalf of the Petitioner in 
Constitution Petition No.29 of 2017 opened his 
arguments by clarifying that no objection is being 
raised by him to the constitution of the SJC but his 
grievance is only limited to the process being employed 
and the Order dated 03.04.2017. It is his case that two 
primary questions required adjudication by this Court; 
firstly, whether the SJC is required by law to conduct 
an open hearing of the matters entrusted to it; and 
Const.P.29 of 2017, etc. 
5 
secondly, whether the SJC Procedure of Enquiry 2005, 
is unconstitutional, hence, liable to be struck down. As 
an ancillary to the second question, the learned Sr. 
ASC contended that this Court may also consider the 
possibility of reading down the provisions of the 
aforesaid SJC Procedure of Enquiry 2005, more 
particularly, paragraph 13 thereof, requiring a trial in 
camera.  
6. 
 
It is further contended by the learned Sr. 
ASC that though it may have been held by this Court 
in its earlier judgments that the proceedings before the 
SJC may not strictly be a right determining exercise 
but only a fact finding process yet since the matter 
before the SJC is the alleged misconduct of a sitting 
Judge of the Superior Court and any findings returned 
would obviously stigmatized such Judge. Hence, the 
provisions of Articles 4, 10A and 19A of the 
Constitution, would be applicable. In this behalf, the 
learned Sr. ASC also drew the attention of this Court to 
the provisions of Article 209(8) of the Constitution, 
which require that the final findings of the SJC would 
be made public. 
Const.P.29 of 2017, etc. 
6 
7. 
 
The learned counsel next contended that the 
proceedings before the SJC were called into question 
before this Court in the case reported as Chief Justice 
of Pakistan Iftikhar Muhammad Chaudhry v. President 
of Pakistan through Secretary and others (PLD 2010 
SC 61). The Petitioner in the said case contested the 
provisions of holding proceedings in camera and 
demanded an open hearing. However, this aspect of the 
matter was left open and not adjudicated upon as is 
apparent from paragraph 200 of the judgment. 
Therefore, this Court must necessarily decide the 
aforesaid question, having directly arisen in the instant 
lis. It is further contended by the learned Sr. ASC that 
even though the SJC may not be a Court but rather a 
forum akin to a Departmental or Domestic Tribunal, 
yet the provisions of Article 10A of the Constitution are 
attracted to the proceedings before it, in view of the 
judgment of this Court reported as M.C.B. Bank 
Limited, Karachi v. Abdul Waheed Abro and others 
(2016 SCMR 108).  
8. 
 
The learned counsel added that it is settled 
law that proceedings which may adversely affect the 
rights or reputation of a person, in the normal course, 
Const.P.29 of 2017, etc. 
7 
must necessarily be held in an “Open Court” and not 
by way of secret proceedings. In support of his 
contentions, the learned Sr. ASC relied upon the 
judgments reported as Syed Ali Nawaz Gardezi v. Lt. 
Col. Muhammad Yusuf (PLD 1963 SC 51), Mairaj 
Muhammad Khan v. The State (PLD 1978 Karachi 
308), Asif Ali Zardari v. Special Judge (Offences in 
Banks) and 10 others (PLD 1992 Karachi 437), and 
Mst. Shirin Nazir v. Badruddin Karamali Nazir and 
another [PLD 1963 (W.P.) Karachi 440]. However, the 
learned 
Sr. 
ASC 
conceded 
that 
in 
exceptional 
circumstances even in a criminal or civil trial the 
proceedings can be held in camera but, he was of the 
view, that such exceptions are now well defined and 
settled. It may include matters relating to the State 
secrets or privacy of persons, more particularly, victims 
of sexual offences and qua matters pertaining to the 
mental capacity of individuals, further to avoid 
scandalizing the institutions. It was his case that none 
of the aforesaid exceptions were applicable to the 
instant case or catered for in paragraph 13 of the SJC 
Procedure of Enquiry 2005.  
Const.P.29 of 2017, etc. 
8 
The learned counsel also attempted to distinguish 
the judgment reported as George Meerabux v. The 
Attorney General of Belize [2005) 2 AC 513] referred to by 
the SJC in its Order dated 18.05.2017. 
9. 
 
The learned counsel, however, was of the view 
that the proceedings before the SJC consist of two stages; 
firstly the determination whether prima facie any case for 
proceedings under Article 209 of the Constitution is 
made out and; secondly the proceedings undertaken by 
the SJC pursuant to such prima facie determination. The 
learned counsel contended that the first stage should be 
held in camera in any event to safeguard the reputation 
of a Judge against whom malicious or frivolous 
complaints may have been made but in the second stage, 
the proceedings must necessarily be held in public, 
especially if the person whose conduct or capacity is 
being inquired into so desires to avoid any miscarriage of 
justice. 
10.  
Mr. Hamid Khan, learned Sr. ASC prefaced his 
submissions with the contention that for all intents and 
purposes, the conclusions drawn by the SJC sealed the 
fate of the Judge whose conduct or capacity is being 
inquired into and no remedy has been provided to him, 
Const.P.29 of 2017, etc. 
9 
therefore, for protection of the rights of such Judge a 
strict criteria needs to be applied. In the above context, it 
was contended that it is an universally accepted principle 
of law that proceedings in an “Open Court” is a sine qua 
non for a fair trial as justice should not only be done but 
should also be seen to be done. In support of his 
contentions, the learned counsel referred to the following 
judgments of the Canadian jurisdiction: 
 
1. 
A.G. (Nova Scotia) v. Maclntyre, [1982] 1 
S.C.R. 175 (183-185-186); and 
 
 
2. 
Canadian Broadcasting Corp. v. New 
Brunswick (Attorney General), [1996] 3 S.C.R. 
480 (para 22) 
 
11.  
It was further contended that in the event of an 
in camera proceedings such Judge whose matter is 
before the SJC would be subjected to character 
assassination through baseless rumors and innuendo.  
12.  
The learned counsel added that the principle of 
an open trial has been upheld by this Court in the 
judgments reported as Mrs. Shahida Zahir Abbasi and 4 
others v. President of Pakistan and others (PLD 1996 SC 
632) and Zulfikar Ali Bhutto v. State (PLD 1979 SC 53). 
No doubt, it is contended, that there are some limitations 
to an open trial but, in this behalf, well defined 
exceptions are set forth in the aforesaid judgments. Said 
Const.P.29 of 2017, etc. 
10
exceptions to the general principle of an “Open Court” 
hearing are public safety and security, privacy, abusive 
conduct of the accused, if the nature of the case is such 
that open hearing would stultify justice itself and to 
prevent scandalous and scurrilous allegations against the 
Judges. In the case at hand, none of the exceptions exist 
nor have been held to exist in the Order dated 
18.05.2017, passed by the SJC.  
13.  
The second limb of the arguments of the 
learned counsel was that the SJC Procedure of Enquiry 
2005 is ultra vires to the Constitution and, therefore, 
non-est in the eye of law, including paragraph 13 thereof 
pertaining to in camera proceedings. It is the case of the 
learned Sr. ASC that the SJC is the creation of the 
Constitution and can only claim such powers as are 
conferred upon it by the Constitution and such powers 
include the authority to issue a Code of Conduct and 
summon the witnesses. However, no power to frame rules 
has been conferred upon the SJC. It is added that where 
the Constitution intended that an Institution created by 
it 
should 
be 
conferred 
rule 
making 
power, 
the 
appropriate enabling provisions stand incorporated in the 
Constitution. Reference, in this behalf, may be made, 
Const.P.29 of 2017, etc. 
11
inter alia, to Articles 67, 72, 87, 99, 139, 175A(4), 
175A(17), 191, 202, 203J and 204(3) of the Constitution. 
Thus, it is contended, the SJC has no power to make any 
rule with regard to its procedure, therefore, the SJC 
Procedure of Enquiry 2005 is in access of the powers 
available with the SJC under the Constitution, hence, 
ultra vires thereof. The learned counsel further reiterated 
that to hold that the SJC has rule making power would 
require 
reading 
words 
and 
expressions 
into 
the 
Constitution which is not permitted by law. In support of 
his contentions, the learned Sr. ASC relied upon the 
judgments 
reported 
as 
Pir 
Sabir 
Shah 
v. 
Shad 
Muhammad Khan, Member Provincial Assembly, N.-
W.F.P. and another (PLD 1995 SC 66) and In the matter 
of Reference by the President of Pakistan under Article 
162 of the Constitution of Islamic Republic of Pakistan 
[(PLD 1957 SC (Pak.) 219)]. 
14.  
In the above context, it was further contended 
that currently, no rules governing the procedure to be 
followed by the SJC have been framed in accordance with 
the Constitution and the law. And such void needs to be 
supplied by the Parliament as has been done in India 
through the enactment of “The Judges (Inquiry) Act, 
Const.P.29 of 2017, etc. 
12
1968”. It is further contended by the learned counsel that 
in absence of such rules or procedure, the SJC is at a 
“disadvantage”. Upon being asked to explain as to what 
he meant, after some hesitation, Mr. Hamid Khan, 
learned Sr. ASC submitted that the SJC could not 
conduct any proceeding against a Judge of a Superior 
Court or any other person in the absence of lawfully 
framed rules of procedure. 
15.  
The learned counsel further contended that the 
case reported as The President-Referring Authority v. Mr. 
Justice Shaukat Ali (PLD 1971 SC 585) cannot be used 
as a precedent in the lis at hand, as the proceedings in 
the said case, were conducted when the Constitution 
stood abrogated. The SJC had been constituted under 
President’s Order No.14 of 1970 and was conducting its 
proceedings 
under 
the 
Supreme 
Judicial 
Council 
(Investment of Powers) Order, 1970, President’s Order 
No.20 of 1970 and the Judges (Compulsory Leave) Order, 
1970 the President’s Order No.27 of 1970. Reference in 
the said case had been filed under Article 128 of the 1962 
Constitution read with the Provisional Constitution Order 
of 1969. With the change in law, the judgment in the 
case of Mr. Justice Shaukat Ali (supra) has lost its 
Const.P.29 of 2017, etc. 
13
relevance. It is further contended that the case of Chief 
Justice of Pakistan Iftikhar Muhammad Chaudhry 
(supra) is equally inapplicable in view of the addition of 
Article 10A of the Constitution.  
16.  
The learned counsel also took exception to rule 
7 of the SJC Procedure of Enquiry 2005 to contend that 
clause (5) of Article 209 of the Constitution requires that 
the decision to proceed or not to proceed against a 
particular person was vested with the SJC, while by 
virtue of rule 7 ibid such powers have been delegated to 
one Member of the SJC. Hence, the proceedings against 
the Petitioners initiated in terms of rule 7 ibid are ultra 
vires and illegal.  
17.  
With reference to the composition of the SJC, it 
was contended by the learned counsel that one of its 
Members is himself the subject of the inquiry before the 
SJC, hence, debarred from being its Member in view of 
the provisions of Article 209(3) of the Constitution, which 
cannot be interpreted narrowly and must be given a 
wider meaning. In support of such contentions, the 
learned counsel relied upon the judgments of this Court 
reported as Pir Sabir Shah (supra) and In the matter of 
Reference by the President of Pakistan under Article 162 
Const.P.29 of 2017, etc. 
14
of the Constitution of Islamic Republic of Pakistan 
(supra). 
18.  
Mr. Munir A. Malik, the learned Sr. ASC an 
Amicus Curie was of the view that some of the various 
issues involved in this case have already been settled by 
a larger Bench of this Court in the case reported as Chief 
Justice of Pakistan Iftikhar Muhammad Chaudhry 
(supra), holding that the SJC is not a Court. It is at best a 
fact finding domestic forum set up by the Constitution to 
look into the conduct and capacity of the Judges of the 
Superior Courts. The SJC conducts an inquiry as 
opposed to a trial. Such an inquiry is only a fact finding 
and not a right determining exercise. It was emphasized 
that this Court by way of the aforesaid judgment has 
accepted/approved the interpretation of law as held in 
the case reported as Mr. Justice Shaukat Ali (supra), 
including the view that the SJC Report is not right 
determining as it is only recommendatory in nature and 
not binding on the President. In this behalf, reference 
was also made to the judgments of this Court reported as 
Khan Asfandyar Wali and others v. Federation of 
Pakistan through Cabinet Division, Islamabad and others 
(PLD 2001 SC 607) and  Malik Asad Ali and others v. 
Const.P.29 of 2017, etc. 
15
Federation of Pakistan through Secretary, Law, Justice 
and Parliamentary Affairs, Islamabad and others (PLD 
1998 SC 161).  
19.  
Unlike Article 209 of the Constitution of the 
Islamic Republic of Pakistan, 1973 in terms of Article 124 
of the Indian Constitution, Article 169 of the Pakistani 
Constitution of 1956; and Article 317 of the Indian 
Constitution (relating to the Public Service Commission), 
the inquiry is conducted by a Council or a Committee 
composed of Judges but not by the Court itself. 
Furthermore, the Indian Supreme Court in the matter of 
Reference under Article 317(1) of the Constitution of 
India (1983) 4 SCC 258 at pages 263-64 Para 7 & 8) has 
held that the findings of this Court under Article 317 of 
the Constitution are binding. 
20.  
The learned Sr. ASC further contended that 
even though there is no express power conferred by the 
Constitution on the SJC to frame its Rules, it would have 
the “implied power” to regulate its own Procedure. There 
is no bar in Articles 209 and 210 of the Constitution 
upon the SJC to lay down its own Procedure, which is 
just and equitable including for holding in camera 
proceedings as has been held in the cases of Faqiri Vasu 
Const.P.29 of 2017, etc. 
16
v. State of Utter Pradesh and others (2008) 2 SCC 409), 
State of Karnataka v. Vishwabharathi House Building 
Coop. Society and others (2003) 2 SCC 412), Reserve 
Bank of India and others v. Peerless General Finance and 
Investment Company Ltd and another (1996)1 SCC 642) 
and Muhammad Anayet Gondal v. The Registrar, Lahore 
High Court, Lahore and another (2015 SCMR 821). 
Where a law confers jurisdiction it impliedly also grants 
the power of doing all such acts and to employ all such 
means as are essential and necessary for the exercise of 
such jurisdiction. Therefore, the SJC Procedure of 
Enquiry 2005 is covered by the doctrine of “implied 
powers”.  
Without prejudice to the above, it was contended 
that the SJC Procedure of Enquiry 2005 are mere 
administrative and internal guidelines and, therefore, 
strictly not binding on the SJC in view of the cases 
reported as The State of Assam and another v. Ajit 
Kumar Sarma and others (AIR 1965 SC 1196) and 
Punjab Healthcare Commission v. Musthaq Ahmed Ch. 
And others (PLD 2016 Lahore 237). Thus, the framing by 
the SJC of the Procedure of Enquiry 2005 is not 
Const.P.29 of 2017, etc. 
17
unconstitutional and in any event are not binding on the 
SJC. 
21.  
In answer to the question raised as to whether 
in camera proceedings before the SJC were violative of 
minimum standards of due process or Article 10A of the 
Constitution, it was contended, that since the SJC does 
not 
determine 
civil 
rights 
but 
only 
makes 
a 
recommendation to the President, the answer must be in 
the negative. Furthermore, in camera proceedings have to 
be distinguished from “secret proceedings” and the 
minimum standards of due process do not prohibit fair 
hearing through the in camera proceedings. The laws of 
many Countries contain provisions for holding judicial 
accountability proceedings in camera. However, there is 
no 
universal 
consensus 
on 
this 
issue. 
Judicial 
accountability through in camera proceedings is not 
necessarily violation of due process but cannot also be 
said that it is a “best practice”. It is a matter of 
Constitutional choice depending on the facts and 
circumstances of a particular Country. It was contended 
that the constitutionality of in camera proceedings have 
been upheld in the following cases, Privy Council Appeal 
No.9 of 2003 (Belize Judgment) and Land Mark 
Const.P.29 of 2017, etc. 
18
Communications, Inc. v. Commonwealth of Virginia 
(1978 435 US 829). In India, the Courts have even held 
that the accused Judge is not entitled to a copy of the 
Report submitted by the Committee of Judges unless 
Parliament takes further action on such Report [Sarojini 
Ramaswami (MRS) v. Union of India and others (1992) 4 
SCC 506)]. This, it was added further reinforces the non-
binding/non-right creating nature of the Committee of 
Judges.   
22.  
The learned Amicus Curie stated that free 
access to justice is a Fundamental Right of the people of 
Pakistan and such a right is dependent upon an 
independent judiciary. There can be no concept of 
Independence of Judiciary unless it consists of persons 
in 
whose 
integrity, 
the 
people 
can 
repose 
their 
confidence. The only safeguard, in this behalf, after 
appointment, is the proceedings under Article 209 of the 
Constitution, which jurisdiction has very sparingly been 
exercised in the last 70 years, thus, in order to ensure 
the continuing confidence of the people in the judiciary, it 
would perhaps be appropriate that the proceedings of the 
SJC are conducted in an “Open Court”. If the proceedings 
are conducted in camera, there is a possibility that it may 
Const.P.29 of 2017, etc. 
19
be presumed that an errant Judge has been protected by 
his peers.  
23.  
Mr. Shahid Hamid, learned Sr. ASC, who is also 
an Amicus Curie, stated that the SJC is a Constitutional 
body, the authority whereof is not limited to inquire into 
the conduct of the Judges alone but includes within its 
ambit other high officials, like the Chief Election 
Commissioner 
and 
the 
Members 
of 
the 
Election 
Commission of Pakistan (ECP), who can only be removed 
by the SJC in view of Article 215 of the Constitution. The 
jurisdiction of the SJC, also includes the matters relating 
to the Auditor General of Pakistan, the Wafaqi Mohtasib 
and the various other Ombudsmen. The SJC is, 
therefore, not a domestic forum for the Superior Court 
Judges only but also a forum for determining whether or 
not a number of other public officials should continue to 
hold such Office, if charged with misconduct, etc.  
24.  
With regard to the status of the SJC Procedure 
of Enquiry 2005, the learned Sr. ASC stated that the 
Constitution 
is 
a 
living 
organic 
document. 
The 
interpretation of its provisions cannot be static and 
frozen at a particular point of time. A reference was made 
to Article 218(3) of the Constitution to contend that the 
Const.P.29 of 2017, etc. 
20
said provision does not by itself empower the ECP to 
make rules authorizing it to give effect to the said 
provision, however, in the case of Workers’ Party 
Pakistan through Akhtar Hussain, Advocate, General 
Secretary and 6 others v. Federation of Pakistan and 2 
others (PLD 2012 SC 681), this Court relied upon the text 
of Article 218(3) of the Constitution alone to hold that the 
ECP could make the rules itself. 
The above view, it was contended, was clarified and 
reaffirmed by this Court in the case reported as Workers 
Party Pakistan through General Secretary and 6 others v. 
Federation of Pakistan and 2 others (PLD 2013 SC 406). 
25.  
The SJC, it was added, is a Constitutional body 
certainly no less and arguable higher in status than the 
ECP. The rules made by the ECP to perform its 
Constitutional 
duty 
under 
Article 
218(3) 
of 
the 
Constitution have statutory force. Thus, the SJC 
Procedure of Enquiry 2005 made by SJC to perform its 
Constitutional duty under Article 209 of the Constitution 
should also be deemed to have statutory force.  
26.  
It was also the case of the learned Sr. ASC that 
the SJC cannot possibly be regarded as a mere fact 
finding body. Can the President remove a Superior Court 
Const.P.29 of 2017, etc. 
21
Judge notwithstanding the SJC’s Report that he is not 
guilty of misconduct? Similarly, can the President refuse 
to remove a Superior Court Judge despite the SJC’s 
finding that such Judge is guilty of misconduct? The SJC 
Reports have binding force except perhaps in a rare case 
where the President is persuaded to take a different view 
on the basis of material not considered by the SJC. Thus, 
the procedure followed by the SJC cannot be regarded as 
a non-statutory internal Rules of Procedure of an 
administrative forum. It is added that though the SJC 
Procedure of Enquiry 2005 have statutory force yet its 
various provisions must be compliant with all the 
Fundamental Rights. If the SJC Procedure of Enquiry 
2005 did not have statutory force it is difficult to see why 
it needs to be compliant with all the Fundamental Rights.  
27.  
It is further added by the learned Sr. ASC that 
before insertion of Articles 10A and 19A in the 
Constitution through the 18th Amendment Act, 2010, the 
Articles 4, 8, 9, 14 and 25 of the Constitution required 
that every person was entitled to an open trial unless 
there were compelling national or public interest 
considerations for a degree of secrecy. Prima facie¸ the 
provisions of paragraph 13 of the SJC Procedure of 
Const.P.29 of 2017, etc. 
22
Enquiry 2005 that the SJC proceedings shall not be open 
to public and shall not be reported unless directed 
otherwise appear to be in conflict with Articles 4, 8, 9, 14 
and 25 of the Constitution. It is next added that the right 
of a Superior Court Judge to hold and continue in office 
unless it is determined through due process of law that 
he is physically or mentally incapacitated or guilty of 
misconduct cannot be regarded as anything other than a 
civil right.  
28.  
It is also the case of the learned Sr. ASC that 
the question whether or not a Superior Court Judge is 
guilty of misconduct or is mentally or physically 
incapacitated 
is 
undoubtedly 
a 
matter 
of 
public 
importance, as it pertains to the administration of 
justice. Thus, the only question is whether the 
restrictions placed on the public’s right to know by 
paragraph 13 of the SJC Procedure of Enquiry 2005 is a 
reasonable restriction or not?  
29.  
It is contended that an open trial at all stages 
and the people’s right to know all matters of public 
importance are not absolute rights. They are subject to 
the exceptions which may pertain to the whole of a 
particular trial or part of it. For example, the public may 
Const.P.29 of 2017, etc. 
23
be barred from a trial of a suspect charged with an 
offence in connection with sensitive military secrets or of 
State security. Reference was made to the decision dated 
09.02.2016 of the United Kingdom Court of Appeal 
reported as Guardian News and Media Limited and 
others v. Erol Incedal [(2016) EWCA Crim 11]. In rape 
cases in camera proceedings may be held to protect the 
dignity of the victims. In mental health cases, in camera 
proceedings may be necessary to protect the identity of 
the 
patients. 
Similar 
considerations 
may 
govern 
guardianship cases. Even in corruption cases, it may be 
necessary to restrict access to information relating to 
Treaties with Foreign Governments. However, even after 
consideration of all the matters it does not appear 
reasonable 
to impose restrictions 
on 
the 
inquiry 
proceedings against a Superior Court Judge, more 
particularly, when he himself desires not to avail the 
protection of such restrictions. It is further added that it 
cannot possibly be imagined that the SJC inquiry will be 
other than absolutely free, fair and impartial or that the 
SJC will not ensure due process in the inquiry. However, 
justice has also to be seen to be done. If the inquiry 
proceedings are open to public there will no room for any 
Const.P.29 of 2017, etc. 
24
doubt that the inquiry has not been free, fair and 
impartial and that due process of law was not observed.  
30.  
It is next added that the SJC Procedure of 
Enquiry 2005 needs to contain a degree of flexibility 
where, in the peculiar circumstances of a case, it may be 
necessary to restrict access to proceedings at the inquiry 
stage. All this could be achieved by appropriately 
amending paragraph 13(1)(3). 
31.  
The learned Sr. ASC concluded that this Court 
may 
consider 
holding 
and 
declaring 
that 
the 
Constitutional powers and mandate conferred on the SJC 
under Article 209 of the Constitution necessarily includes 
the power to make rules for the effective implementation 
of its provisions and the SJC Procedure of Enquiry 2005 
must be deemed to have statutory force and its 
provisions ought to be compliant with all Fundamental 
Rights guaranteed by the Constitution. The right of a 
Superior Court Judge to continue in office is a civil right 
and entitled to protection conferred by the Fundamental 
Rights guaranteed by the Constitution. The question 
whether or not a Superior Court Judge should continue 
in office in the face of charge(s) of misconduct is a matter 
of public importance and the general public has a right of 
Const.P.29 of 2017, etc. 
25
access to the SJC proceedings; Articles 4, 8, 9, 10A, 14, 
19A and 25 of the Constitution and the principles of 
natural justice required that all proceedings of the SJC 
should be open to public unless the SJC determines 
otherwise in the peculiar circumstances of a case. Even 
in such a case, the SJC may release the record of in 
camera proceedings at the conclusion of the inquiry and 
the SJC must amend paragraph 13 of its Procedure of 
Enquiry, 2005 in accordance with the above declarations. 
32.  
Mr. Ashtar Ausaf Ali, learned Attorney General 
for Pakistan by relying upon the judgments of this Court 
reported as Khan Asfandar Wali and others (supra), Mr. 
Justice Shaukat Ali (supra) and Chief Justice of Pakistan 
Iftikhar Muhammad Chaudhry (supra), contended that 
the SJC is a unique Institution. However, it is not a 
Court. Similarly, it is now a well settled principle of law 
that the proceedings before the SJC do not constitute a 
trial for determination of civil rights or criminal liability. 
Such proceedings are a fact finding inquiry only. Hence, 
Article 10A of the Constitution is inapplicable to such 
proceedings. It was also the case of the learned Attorney 
General for Pakistan that an appropriate forum for 
determination of rights is this Court whose jurisdiction 
Const.P.29 of 2017, etc. 
26
can be invoked on the grounds and in the circumstances 
set forth in the case reported as Chief Justice of Pakistan 
Iftikhar Muhammad Chaudhry (supra).  
33.  
The learned Attorney General for Pakistan 
referred to the judgment of this Court reported as 
Government of Balochistan through Additional Chief 
Secretary v. Azizullah Memon and 16 others (PLD 1993 
SC 341) to contend that this Court has placed reliance 
upon Willoughby a Constitution of United States, 
Second Edition, Vol. 11 at page 1709 where the term 
“due process of law” has been summarized as follows: 
  
(1) 
He 
shall 
have 
due 
notice 
of 
proceedings which affect his rights. 
 
  
(2) 
He 
shall 
be 
given 
reasonable 
opportunity to defend. 
 
  
(3) 
That the Tribunal or Court before 
which his rights are adjudicated is so 
constituted 
as 
to 
give 
reasonable 
assurance 
of 
his 
honesty 
and 
impartiality, and 
 
  
(4) 
That it is a Court of competent 
jurisdiction. 
 
34.  
Reference was also made to the judgment of 
this Court reported as The University of Dacca through 
its Vice-Chancellor and the Registrar, University of Dacca 
v. Zakir Ahmed (PLD 1965 SC 90) wherein it was held 
that in disciplinary proceedings the rules of natural 
Const.P.29 of 2017, etc. 
27
justice must be observed and such procedure is followed 
as has been laid down in the SJC Procedure of Enquiry 
2005 which is in accordance with the law and the 
standards of due process referred to above and no 
exception can be taken thereto. 
35.  
The Supreme Judicial Council’s Order dated 
18.05.2017, it was contended, is based, inter alia, on the 
judgments of this Court in the cases reported as The 
President v. Mr. Justice Shaukat Ali (supra) and Chief 
Justice of Pakistan Iftikhar Muhammad Chaudhry 
(supra). 
36.  
Similar proceedings in foreign jurisdiction are 
also held in camera. Reliance is placed on the cases 
reported as George Meerabux (supra), Kentucky State 
Bar 
Association 
v. 
Taylor 
[482 
S.W.2d 
574 
(Ky.Ct.App.1972)] and McCartney v. Commission on 
Judicial Qualifications [12 Cal. 3d 512 (Supreme Court 
of California)].  
37.  
More recently, it was agreed by consensus in 
the Mount Scopus International Standards of Judicial 
Independence, consolidated in 2015 that disciplinary 
proceedings pertaining to the Judges ought to be held in 
camera.  
Const.P.29 of 2017, etc. 
28
38.  
Therefore, in camera proceedings not only 
comply with the rules of natural justice but also conform 
to international standards on the subject matter. It was 
contended that neither the rights of the individual nor 
the canons of natural justice or fairness can be said to be 
violated by conducting such proceedings in camera. All 
procedural fairness is accorded to the Judges in question 
and thus any claim of violation of natural justice is 
untenable in view of the law and the international 
practices.  
39.  
It is submitted that proceedings before the SJC 
carry implications on the administration of justice and 
the 
Independence 
of 
Judiciary. 
The 
purpose 
of 
conducting said proceedings in camera, are two-fold: 
firstly, they protect the Petitioners from a whispering 
campaign and secondly they shield complainants from 
unwanted and unwarranted publicity. A public trial 
would give rise to murmurs and whispers about the 
Petitioner’s integrity and propriety. Such murmurs while 
a Judge remains in Office are likely to embarrass not 
only an individual Judge, but the administration of 
justice as a whole. Moreover, in camera nature of these 
proceedings allows complainants and witnesses to 
Const.P.29 of 2017, etc. 
29
approach the SJC without fear of recrimination. To allow 
such proceedings to be conducted publicly would not 
only adversely affect the Independence of the Judiciary 
but would also dissuade complainants from approaching 
the SJC.  
40.  
Moreover, it was added, a domestic fact finding 
forum, unlike a Court of Law, is not constrained by a 
Code of Procedure, thus, has no requirement to conduct 
its proceedings openly. A perusal of the aforesaid 
precedents reveals that the SJC has legitimate reasons 
for keeping its proceedings in camera, since the same 
has nexus with the protection of complainants and the 
Independence of Judiciary.  
41.  
Concise statements have been filed on behalf of 
the Federation of Pakistan through which it is contended 
that the SJC Procedure of Enquiry 2005, has not 
statutory force and this vacuum needs to be filled by the 
Parliament and the matter be referred to it. It has also 
been stated that Article 10A of the Constitution and the 
other provisions i.e. the Fundamental Rights are 
applicable to the proceedings before the SJC.  
42.  
Mr. Hamid Khan, learned Sr. ASC took 
exception to the contentions of the learned Attorney 
Const.P.29 of 2017, etc. 
30
General for Pakistan which were apparently in conflict 
with the concise statements filed on behalf of the 
Federation of Pakistan. It was his case that the 
contentions of the learned Attorney General for Pakistan 
are not on instructions of the Federation i.e. his client. 
The learned Attorney General for Pakistan contended 
that he has appeared before this Court pursuant to a 
notice under Order XXVII-A CPC and has made his 
submissions in such capacity. He further asserted that 
the Federation was only a proforma Respondent in the 
instant proceedings.  
43.  
Heard. Record perused. 
 
44.  
At the very outset, it may be appropriate to 
remind ourselves that while interpreting any provision of 
the Constitution or for that matter even the law it is 
imperative that the said provision be contextualized in its 
proper perspective keeping in view its genesis and more 
importantly, the purpose sought to be achieved by its 
enactment.  
45.  
 There can be no escape from the obvious fact 
that access to justice is a Fundamental Right of the 
people of Pakistan guaranteed under the Constitution. 
There can be no concept of access to justice without an 
Const.P.29 of 2017, etc. 
31
Independent 
Judiciary. 
The 
jurisprudence, 
both 
nationally and internationally which has evolved over the 
ages, around the concept of Independence of the 
Judiciary recognizes that the security of tenure of Judges 
is a critical pre-condition for such independence. This is 
a universally accepted principle and has also been laid 
down by a larger Bench of this Court in the case reported 
as Chief Justice of Pakistan Iftikhar Muhammad 
Chaudhry (supra) in the following terms: 
 
“60. I would, therefore, conclude and 
hold 
that 
access 
to 
justice 
was 
a 
Fundamental 
Right 
which 
the 
Constitution 
had 
guaranteed 
to 
the 
people; 
that 
the 
existence 
of 
an 
independent and vibrant judiciary was 
indispensable 
and 
crucial 
for 
the 
enjoyment of the said constitutional 
assurance and in the absence thereof, 
this right would be a mere illusion; that 
without security to the Judges of the 
Superior Courts vis-à-vis, inter alia, their 
service and the tenure thereof, …” 
 
(underlining is for emphasis) 
 
46.  
Historically, the Fundamental Rights of the 
people require protection from the excess of the Executive 
and the Vested Interest, both commercial and political. In 
order to safeguard the Fundamental Rights of the people 
guaranteed under the Constitution, the Independence of 
Judiciary 
obviously 
must 
be 
insulated 
from 
the 
onslaught of the Executive and such vested Interests, 
Const.P.29 of 2017, etc. 
32
who are past masters at Institutional Capture. Thus, the 
security of tenure of Judges more so those of the 
Superior Courts is imperative and, therefore, adequate 
safeguards in this behalf are provided including by 
enacting what appears to be a rather cumbersome and 
strict process for their removal. This cardinal principle is 
reflected in the Constitutional dispensation of almost all 
Democratic countries peopled by citizens and not 
subjects. The exceptions, in this behalf, are almost 
always 
found 
in 
countries 
either 
under 
Military 
Dictatorships or ruled by Fascist regimes. The said 
safeguard is reflected in our Constitution under Article 
209. It is no coincidence that each and every time a 
Military Dictatorship is imposed in Pakistan and a 
Constitutional “deviation” occurs an essential feature of 
the new dispersion is the promulgation of some Pseudo 
Legal Instrument enabling the removal of Judges by the 
Executive without the necessity of resorting to the 
provisions of Article 209 of the Constitution. Reference, 
in this behalf, may be made to “The Oath of Office 
(Judges) Order, 2000” and “The Oath of Office (Judges) 
Order, 2007”. With its independence crushed the 
judiciary is subjugated and the Fundamental Rights of 
Const.P.29 of 2017, etc. 
33
the people including the right to access to justice 
evaporates. 
47.  
Incidentally, other Constitutional Institutions 
and Legal Offices bestowed or mandated with the 
responsibility of enforcing Constitutional obligations or 
enforcing the rights of the people against the Executive 
have also been granted such security of tenure by 
requiring removal of the incumbents thereof through the 
SJC created under Article 209 of the Constitution. These 
Offices, inter alia, includes Chief Election Commissioner 
and the Members of the Election Commission of Pakistan 
who can only be removed by the SJC in view of Article 
215 of the Constitution. The jurisdiction of the SJC also 
includes the matters relating to the removal of the 
Auditor General of Pakistan under Article 268(5) of the 
Constitution. 
Similarly, 
Section 
5 
of 
the 
Federal 
Ombudsmen Institutional Reforms Act, 2013 (Act of 
2013) provides that an Ombudsman may be removed 
from Office through the SJC. As per Section 2(b) and (c) 
of the Act of 2013 Ombudsman means an Ombudsman 
appointed under the Wafaqi Mohtasib (Ombudsman) 
Order, 1983 (P.O. No.1 of 1983), the Establishment of the 
Office of Federal Tax Ombudsman Ordinance, 2000; The 
Const.P.29 of 2017, etc. 
34
Insurance Ordinance, 2000; The Banking Companies 
Ordinance, 1962; and The Protection against Harassment 
of Women at the Workplace Act, 2010.  
48.  
The aforesaid leaves no manner of doubt that 
the primary purpose of Article 209 of the Constitution is 
to ensure the security of tenure of those who can only be 
removed thereunder. It is in the above context and 
backdrop, 
the 
provisions 
of 
Article 
209 
of 
the 
Constitution must necessarily be interpreted and applied 
without allowing ourselves to be distracted by the 
intensity of the real or perceived difficulties that may 
currently exist.  
49.  
However, it does not mean that those falling 
within the ambit of Article 209 of the Constitution are 
secret cows beyond the pale of accountability. If a person 
looses or abandons the necessary attributes of a Judge of 
integrity, probity, legal expertise and mental balance then 
he is not entitled to any security of tenure and must be 
weeded out post-haste with surgical precision through 
due process in terms of Article 209 of the Constitution. 
Such removal is necessary to preserve the Independence 
of Judiciary. Accountability strengthens rather than 
weakens institutions.  
Const.P.29 of 2017, etc. 
35
50.  
The status and nature of proceedings before the 
SJC have come up for adjudication on more than one 
occasions before this Court. In the case reported as Chief 
Justice of Pakistan Iftikhar Muhammad Chaudhry 
(supra), a larger Bench of this Court after examining all 
preceding pronouncements by this Court on the subject 
settled several aspects of the matters at hand. In the 
aforesaid judgment, it was observed as follows: 
“96. The conclusion is thus inevitable 
that the Supreme Judicial Council is a 
forum created by the Constitution but the 
Constitution itself has refused to grant it 
the status of a court.” 
 
It was also held as follows: 
“97. Although, having discovered the 
verdict of the Constitution itself about the 
status of the S.J.C., it may no longer be 
necessary to say anything more on the 
subject but it may be of some help to 
mention the further insight provided to 
us by the Constitution vis-a-vis the said 
issue. The proceedings which take place 
before the S.J.C. have been described, by 
Article 209 of the Constitution, as an 
inquiry and not a trial. It is too well 
known by now that an inquiry is only a 
fact-finding and not a right-determining 
exercise and further that the courts 
ordinarily 
hold 
trials 
and 
finally 
pronounce upon the rights of the parties 
if the proceedings were of a civil nature or 
declare the guilt or innocence of the 
accused persons if the proceedings were 
of a criminal or a quasi-criminal nature. 
The courts of law deliver judgments and 
pass orders which are final, enforceable 
and executable and do not 
submit 
reports. But according to clause (6) of the 
Const.P.29 of 2017, etc. 
36
abovementioned Article 209, what is 
produced by the S.J.C. as a result of the 
proceedings taken by it is only a report 
which is to be submitted/sent to the 
President. Although the opinion of the 
S.J.C. about the fitness of a Judge 
receives quietus but it has no power to 
make a final pronouncement which could 
PROPRIO VIGORE be binding on and 
create rights and obligations between the 
parties and consequently could not order 
removal of a Judge from office who is 
found unfit by it to hold the said office. In 
fact, as declared by this Court in the case 
of KHAN ASFAND YAR WALI (PLD 2001 
SC 607) and in the case of MALIK ASAD 
(PLD 1998 SC 161), the findings of the 
S.J.C. and its report to the President were 
only "recommendatory in nature". It may 
be added that if the intention of the 
framers of the Constitution was to have 
the inquiry in question conducted by a 
court then it would be absurd to expect 
the Constitution to first create a Council 
and then to expect us to stretch all limits 
and confer the status of a court on the 
said Council for the said purpose when 
the same object could have been achieved 
by assigning the said task to an already 
existing court like it had been done 
through 
Article 
169 
of 
the 
1956 
Constitution 
which 
had 
cast 
this 
obligation on the Supreme Court itself 
with respect to the High Court Judges.” 
(bold for emphasis) 
In the aforesaid judgment, it was also held that: 
“98. Having thus examined the relevant 
legal and constitutional provisions and 
also having surveyed the case law, I am of 
the opinion that the true status of the 
Supreme Judicial Council is the one 
suggested by Syed Sharif-ud-Din Pirzada, 
the learned Sr. ASC appearing for the 
President 
of 
Pakistan 
while 
placing 
reliance on MR. JUSTICE SHAUKAT ALI'S 
CASE (PLD 1971 SC 585 at 602) wherein 
the said status had been determined as 
Const.P.29 of 2017, etc. 
37
under:-- 
"Moreover, 
an 
inquiry 
into 
the 
conduct of a Judge is neither a 
criminal indictment nor even a 
quasi-criminal proceedings, but it is, 
in 
our 
opinion, 
mainly 
an 
ADMINISTRATIVE 
PROCEEDINGS 
conducted by a DOMESTIC FORUM 
to examine the professional fitness 
of a Judge. The subject-matter of 
these proceedings is neither civil 
rights 
and 
duties 
nor 
criminal 
liabilities. It is simply the conduct of 
a Judge which is to be properly 
reviewed in the interest of the purity 
and honour of the judiciary. The 
FORUM 
consists 
of 
Judges 
of 
superior courts who also belong to 
the same profession. To be tried by 
one's peers is a protection because 
they understand one's difficulties, 
problems and the situation in which 
one was. DOCTORS, ARCHITECTS, 
ACCOUNTANTS AND LAWYERS aim 
at 
having 
and 
have 
THEIR 
DOMESTIC TRIBUNALS, that is to 
say, the tribunals which Judge their 
conduct are manned by their own 
peers."? 
It was also held as follows: 
“99. … hold that while the Supreme 
Judicial 
Council 
may 
have 
some 
attributes and trappings of a court of law 
but it was neither intended by the 
Constitution to be a court nor could any 
such status be conferred on it in view of 
the relevant constitutional provisions. It 
is, at best, a fact-finding domestic forum 
set up by the Constitution to look into the 
affairs of the Judges of the Superior 
Judiciary. I may, however, add that the 
said Council is entitled to the highest of 
respect because at least three of its 
members are the most senior Judges of 
the country. …” 
 
Const.P.29 of 2017, etc. 
38
51.  
The relevant provisions of the Constitution, 
more particularly, Articles 209, 210 and 211 when 
examined in the light of the judgment handed down by a 
larger Bench of this Court in the case reported as Chief 
Justice of Pakistan Iftikhar Muhammad Choudhary 
(supra) and the previous pronouncements on the subject 
noted and quoted with approval in the aforesaid 
judgment, the relevant portions whereof have been 
reproduced in extenso hereinabove could reveal that: 
firstly, the SJC is a Unique Forum created by the 
Constitution;  
secondly, the SJC is not a Court though it may 
exhibit some of its trappings including the power to 
punish for contempt;  
thirdly, 
the 
proceedings 
before 
the 
SJC 
are 
essentially a fact finding inquiry;  
fourthly, the SJC is akin to a domestic forum and it 
conducts 
administrative 
proceedings 
regarding 
the 
question of conduct or capacity of a Judge, who is to be 
judged by his own peers; and 
fifthly, the findings of SJC are recommendatory in 
nature and do not enjoy the status, a right determining 
Const.P.29 of 2017, etc. 
39
judgment handed down by a Civil or Criminal Court 
which is per se final, enforceable or executable;  
sixthly though, the SJC cannot itself remove a Judge 
on the basis of its findings but any conclusion drawn has 
been bestowed with an element of quietus i.e. finality. 
52.  
The questions that have arisen in the lis at 
hand, as can be identified from the submissions of the 
learned counsels which have been referred to above, need 
to be adjudicated upon in the light of the aforesaid 
observations in a manner that complements and 
supplements the judgment of the larger Bench of this 
Court handed down in the case of Chief Justice of 
Pakistan Iftikhar Muhammad Chaudhry (supra). 
53.  
Adverting first to the challenge thrown to the 
vires and validity in the SJC Procedure of Enquiry 2005, 
it has been noted that the first limb of the contentions of 
the learned counsel for the Petitioners, in this behalf, is 
that no rule making power has been conferred upon the 
SJC and it has been further contended that where the 
framers of the Constitution wished to do so such power 
was specifically conferred and, in this behalf, reference 
was made to the various provisions of the Constitution 
Const.P.29 of 2017, etc. 
40
i.e. Articles 67, 72, 87, 99, 139, 175A(4), 175A(17), 191, 
202, 203J and 204(3).  
54.   
The Supreme Judicial Council has been created 
by and conferred with the jurisdiction through Article 
209 of the Constitution. It is settled law that where a law 
(more so the Constitution) confers jurisdiction it impliedly 
also grants the power to do all such acts and employs all 
such means as are essential and necessary for the 
exercise of such jurisdiction. This principle of “implied 
power” is based on the well known legal maxim “Cui 
Jurisdictio Data Est, Ea Quoque Concessa Esse Videntur, 
Sine Quibus Jurisdictio Explicari Non Potuit” i.e “To 
whomsoever a jurisdiction is given, those things are also 
supposed to be granted, without which the jurisdiction 
cannot be exercised.” Reference, in this behalf, may be 
made to “N S Bindra’s Interpretation of Statutes”, (Tenth 
Edition at page 642).  
55.  
Similarly, 
in 
“Statutory Interpretation” 
by 
Francis Bennion in Fourth Edition at page 429 with 
regard to implied and ancillary powers, it is stated: 
“… that ‘whatever may fairly be regarded 
as incidental to, or consequential upon, 
those things which the Legislature has 
authorized, ought not (unless expressly 
prohibited) 
to 
be 
held, 
by 
judicial 
construction, to be ultra vires’. …” 
 
Const.P.29 of 2017, etc. 
41
 
The aforesaid legal maxim and the principle of 
“implied power” is well established in our jurisprudence. 
This Court in the case of Muhammad Anayet Gondal 
(supra), observed that:  
“5. 
… Even otherwise, it is a settled 
principle of law that where a statute 
confers a jurisdiction on a Court or 
Tribunal it also confers by implication the 
powers which are reasonably incidental 
and ancillary to effective exercise of 
jurisdiction. …” 
 
56.   
In the case of Ahmad Khan v. Commissioner, 
Rawalpindi Division and another [PLD 1965 (W.P.) 
Peshawar 65], it was observed that: 
“6. … It is one of the cardinal rules of 
construction that where an Act confers a 
jurisdiction it impliedly also grants the 
power of doing all such acts or employ 
such 
means 
which 
are 
essentially 
necessary to its execution. This cardinal 
rule is based on the doctrine of "implied 
powers" which in turn is embodied in the 
maxim "Quando lex aliquid alicui concedit, 
conceditur et id sine quo res ipsa esse non 
potest". The full and true import of this 
maxim has been lucidly expressed in 
Fanton v. Hameton (1) (11 Moo. P C c. 
347), which is as follows:-  
"Whenever anything is authorised 
and especially if, as matter of 
duty, required to be done by law, 
and it is found impossible to do 
that thing unless something else 
not authorised in express terms 
be also done, then that something 
else will be supplied by necessary 
intendment. …”  
Const.P.29 of 2017, etc. 
42
57.   
In 
the 
case 
reported 
as 
Commissioner, 
Khairpur Division, Khairpur and another v. Ali Sher 
Sarki (PLD 1971 SC 242), this Court held that under the 
West Pakistan Control of Goondas Ordinance, 1959, the 
Commissioner had the power to grant interlocutory relief, 
though not expressly provided for. This principle was 
reiterated in the case of Sind Employees' Social Security 
Institution and another v. Adamjee Cotton Mills Ltd. (PLD 
1975 SC 32). 
58.  
The Indian Supreme Court in its judgment 
reported as State of Punjab v. Salil Sabhlok and others 
[(2013) 5 SCC 1 at page 33], held as follows: 
 
“39.  … A reading of Article 316 of the 
Constitution would show that it confers 
power on the Governor of the State to 
appoint the Chairman and other Members 
of a Public Service Commission. It has 
been held by this Court in Mohinder Singh 
Gill v. Chief Election Commr., that an 
authority has implied powers to make 
available and carry in to effect powers 
expressly conferred on it. Thus, under 
Article 316 of the Constitution, the 
Governor of a State has not only the 
express 
power 
of 
appointing 
the 
Chairman and other Members of the 
Public Service Commission but also the 
implied powers to lay down the procedure 
for 
appointment 
of 
Chairman 
and 
Members 
of 
the 
Public 
Service 
Commission and the High Court cannot 
under Article 226 of the Constitution 
usurp this constitutional power of the 
Government and lay down the procedure 
for appointment of the Chairman and 
Const.P.29 of 2017, etc. 
43
other Members of the Public Service 
Commission. …” 
 
 
 
    (underlining for emphasis) 
 
Reference, in this behalf, may be made to the 
observations of this Court in the judgment reported as 
Workers’ Party Pakistan through Akhtar Hussain, 
Advocate, General Secretary and 6 others v. Federation of 
Pakistan and 2 others (PLD 2012 SC 681), which reads 
as follows:  
 
“The Election Commission is empowered 
to frame rules to ensure that the elections 
are conducted justly, fairly, honestly and 
in accordance with the law and that 
corrupt practices should be guarded 
against. There is unanimity of views on 
various suggested courses of action. 
Therefore, 
we 
direct 
the 
Election 
Commission to frame rules and issue 
instructions to provide legal sanction to 
these measures and implement the same 
to achieve the ultimate objective of fair, 
free, just and honest elections.” 
 
A close scrutiny of the aforesaid observations would 
reveal that the same are more than just a reference to the 
rule making power envisaged by Section 107 of the 
Representation of the People Act, 1976 (RoPA of 1976) 
and in fact embodies the implied incidental and ancillary 
power of the ECP to ensure due fulfillment of its 
Constitutional mandate. 
Const.P.29 of 2017, etc. 
44
59.   
It appears to be well settled principle of law that 
when a jurisdiction is conferred by any law, then power 
of doing all that is necessary for the exercise of such 
jurisdiction, is also implied in it. With regard to a forum 
vested with the authority to return a finding or an 
adjudication, after a fact finding exercise the most 
primary and elemental of such incidental powers would 
be the authority to formulate its procedure. The word 
“Procedure” has been defined in the Corpus Juris 
Secundum (1951), Volume LXXII, at Page 971 in the 
following words: 
“PROCEDURE. The word “procedure” is 
defined generally as meaning a course or 
mode of action; the act or manner of 
proceeding 
or 
moving 
forward; 
the 
manner of proceeding or acting; progress, 
process, operation, conduct, a step taken, 
an act performed, a proceeding. 
 
In law the “procedure” signifies the means 
whereby the court reaches out to restore 
rights and remedy wrongs, and in this 
sense the term is defined as used in the 
phrase “practice and procedure” …” 
 
60.   
In 
the 
case 
of 
Muhammad 
Ijaz 
Ahmad 
Chaudhry Vs. Mumtaz Ahmad Tarar and others (2016 
SCMR 1), this principle was reiterated in the following 
words:  
“12. … Another principle of general 
application is that every procedure that 
promotes the administration of justice is 
Const.P.29 of 2017, etc. 
45
permissible 
unless 
it 
is 
expressly 
prohibited. Reference in this behalf can 
be made to H.M. Saya & Co. v. Wazir Ali 
Industries Ltd. (PLD 1969 SC 65). …” 
 
 
The aforesaid leaves no manner of doubt that where 
the Constitution creates a forum (SJC) vested with the 
jurisdiction of accountability of the Judges of the 
Superior Courts and holders of other high Offices as 
mentioned in the Constitution or the law, such forum 
(SJC) has implied and ancillary power to give effect to the 
mandate of the Constitution, more particularly, by 
devising its own procedure. Such implied power stands 
conferred even upon administrative and Domestic 
Tribunals created or conceived by sub-Constitutional 
legislation and the other statutory instruments. It is 
difficult to accept the contentions of the learned counsel 
to the contrary, as it would amount to reducing the SJC 
a forum created by the Constitution to a status lower 
than that of a Domestic Tribunal formed by a Sub-
Constitutional Statue or rules framed thereunder. 
61.   
Thus, no exception can be taken to the validity 
or vires of the SJC Procedure of Enquiry 2005 on this 
ground.  
62.   
A desperate attempt was made to argue that in 
the absence of rule making power of the SJC, such voids 
Const.P.29 of 2017, etc. 
46
having not been filled by appropriate legislation by the 
Parliament, the SJC cannot function or in other words 
proceed against the Petitioners. This aspect of the matter 
has been dealt herein above as has already been held 
that the SJC has the implied power to fulfill its 
Constitutional mandate including by formulating its own 
procedure. Furthermore, if the contention of the learned 
counsel is accepted, it would reduce Articles 209, 210 
and 211 of the Constitution to a dead letter and therefore 
redundant. 
63.   
In various judgments of this Court, it has been 
held that there can be no interpretation of the 
Constitution which may lead to redundancy of any of its 
provision. In the case of Chief Justice of Pakistan Iftikhar 
Muhammad Chaudhry (supra), it was observed that:  
“68. … Every student of law is expected 
to know the principle which is too well 
established by now that no redundancy 
or surplusage could ever be attributed 
to a draftsman much less to the one 
drafting the Constitution. …” 
  
 
 
Similarly, in the case reported as Regarding 
Pensionary Benefits of the Judges of Superior Courts 
from 
the 
date 
of 
their 
Respective 
Retirements, 
Irrespective of their Length of Service as Such Judges, 
etc. (PLD 2013 SC 829), it was observed as follows: 
Const.P.29 of 2017, etc. 
47
“69. … when we revert to some well 
recognized principles of interpretation of 
statute, we find the following basic 
principles outlined for this purpose.  
g. 
It  is  a  cardinal  rule  of  
construction  of  statutes  that  
no words are to be added or 
omitted 
or 
treated 
as 
surplusage or redundant.”  
64.  
In the case of Shahid Nabi Malik and another 
Vs. Chief Election Commissioner, Islamabad and 7 others 
(PLD 1997 SC 32), it was observed by this Court that: 
“6. 
… it is well-established principle 
that while interpreting a Constitutional 
provision it must be remembered that a 
Constitution unlike a statute cannot be 
changed 
or 
amended 
frequently. 
A 
document of such a basic nature is not 
merely the imprisonment of past but is 
also alive to the future aspiration and 
need of the nation. Therefore, while 
interpreting a Constitutional document it 
must be read and considered as a whole 
to discover the true intention of its 
framers. It is for these reasons that no 
redundancy, surplusage, absurdity or 
inconsistency can be attributed to the 
framers of the Constitution. …” 
 
 
 
(underlining is for emphasis) 
 
65.   
Thus, the contentions of the learned Sr. ASC 
offend against the most elemental principles of settled 
law pertaining to interpretation of the Constitution as has 
been repeatedly and consistently laid down by this Court.  
66.  
An objection has been raised by Mr. Hamid 
Khan, learned Sr. ASC to the constitution of the SJC, 
Const.P.29 of 2017, etc. 
48
conducting the proceedings against the Petitioners. The 
learned Sr. ASC has advanced an interpretation of Article 
209(3) of the Constitution to canvass the point of view 
that any Member of the SJC as mentioned in Article 
209(2) whose conduct or capacity is the subject matter of 
an inquiry before the SJC cannot act as a Member of the 
SJC even in proceedings against a third party. It is his 
point of view that Article 209(3) of the Constitution like 
other provisions of the Constitution should be interpreted 
broadly and not narrowly to limit its import merely to 
avoid an obvious situation of a person being the Judge of 
his own cause.  
67.  
Article 209(3) of the Constitution is reproduced 
hereunder for ease of reference: 
 
“209. (3) If at any time the Council is 
inquiring into the capacity or conduct of a 
Judge who is a member of the Council, or 
a member of the Council is absent or is 
unable to act due to illness or any other 
cause, then- 
 
 
 
(a) 
if such member is a Judge of the 
Supreme Court, the Judge of the 
Supreme Court who is next in seniority 
below 
the 
Judges 
referred 
to 
in 
paragraph (b) of clause (2), and 
 
(b) 
if such member is the Chief Justice of a 
High 
Court, 
the 
Chief 
Justice 
of 
another High Court who is next in 
seniority amongst the Chief Justices of 
the remaining High Courts, 
 
Const.P.29 of 2017, etc. 
49
 
 
shall act as a member of the Council 
in his place.” 
 
A perusal of the aforesaid provisions makes it clear and 
obvious that it not only precludes a person from being a 
Judge in his own cause but more importantly, caters for 
the situation in its entirety where a Member of the SJC 
as mentioned in Article 209(2) of the Constitution himself 
the subject matter of an inquiry, by identifying the 
person who will act in substitution of such Member. This 
aspect of the matter, which is self-evident, perhaps, has 
escaped the notice of the learned counsel.  
68.  
The question whether a Judge under inquiry 
can be temporarily stopped from performing his judicial 
or official functions came up before a larger Bench of this 
Court in the case reported as Chief Justice of Pakistan 
Iftikhar Muhammad Chaudhry (supra) wherein it was 
observed as follows:  
“132. …  It may be added that even a 
temporary disability cast on a Judge in 
the 
matter 
of 
discharging 
his 
constitutional and official obligations as 
such amounted to “REMOVAL” from office 
and 
was 
not 
permitted 
by 
our 
Constitution.” 
 
 
(underlining is for emphasis) 
 
69.  
To act as a Member of the SJC is an official 
function of a Judge and in view of the dictum as laid 
Const.P.29 of 2017, etc. 
50
down by this Court reproduced herein above restraining 
a Judge from being a Member of the SJC would amount 
to his removal, which is not permissible under the law, 
except as a consequence of, a final verdict by the SJC in 
terms of Article 209 of the Constitution. Thus, no matter 
how broadly or narrowly interpreted Article 209(3) of the 
Constitution, the contentions of the learned Sr. ASC that 
a Judge who is the subject matter of an inquiry before 
the SJC cannot sit as a Member thereof in respect of the 
proceedings against another person is misconceived as it 
is not only contrary to the words and expressions 
employed in Article 209(3) of the Constitution itself but 
also the law as laid down by this Court in the case of 
Chief Justice of Pakistan Iftikhar Muhammad Chaudhry 
(supra) referred to and reproduced herein above. 
70.  
The learned Sr. ASC also focused on paragraph 
7 of the SJC Procedure of Enquiry 2005 and contended 
that by way of the aforesaid provisions, the power to 
determine whether a complaint, prima facie, discloses 
grounds for proceeding under Article 209 of the 
Constitution has been delegated to a Member of the SJC, 
which is contrary to the provisions of Article 209 of the 
Constitution. We are afraid that the contentions of the 
Const.P.29 of 2017, etc. 
51
learned counsel are wholly misconceived. No doubt, 
preliminary spadework may be undertaken by a Member 
of the SJC but the decision to proceed or not to proceed 
against a Judge is in the sole and exclusive domain of the 
SJC itself and has not been delegated to anybody. The 
aforesaid is obvious from the provisions of paragraph 7 
(1)(b) of the SJC Procedure of Enquiry 2005, which reads 
as follows:  
“7. 
Procedure 
for 
scrutinizing 
information:-(1) Once any information in 
respect of enquiry into the conduct of a 
Judge is received by any Member or the 
Council, it shall be presented to the 
Chairman of the Council, who ; shall  
 
(a) 
.……………………………………… 
 
(b) 
if the Council is satisfied that 
the 
information 
prima 
facie 
discloses sufficient material for 
an enquiry, it shall proceed to 
consider the same.” 
 
 
Reference, in this behalf, may also be made to paragraph 
9(1) of the SJC Procedure of Enquiry 2005, which reads 
as follows:- 
“9. (1) If the Council decides to proceed 
against a Judge, a show cause notice 
shall 
be 
issued 
to 
him 
alongwith 
supporting material calling upon him to 
explain his conduct within 14 days.”   
 
  
The aforesaid provisions are a complete and obvious 
answer to the contentions of the learned counsel.    
Const.P.29 of 2017, etc. 
52
71.  
It has been noted with some interest that      
Mr. Hamid Khan, learned Sr. ASC for the Petitioners 
attempted to draw strength from the concise statements 
purportedly filed by the Federal Government to contend 
that the Procedure of the SJC can and needs to be 
regulated through an Act of Parliament. The concise 
statement i.e. Civil Misc. Application No.8647 of 2017 in 
Constitution Petition No.29 of 2017 has been purportedly 
filed by Respondent No.1 i.e. the Federation of Pakistan 
through the learned Attorney General for Pakistan. As 
mentioned above, the Attorney General for Pakistan has 
disowned this concise statement and stated that the 
Federation is only a proforma Respondent. Civil Misc. 
Application 
No.2528 
of 
2018 
has 
been 
filed 
in 
Constitution Petition No.36 of 2017, which is identical to 
the concise statement referred to above. This too has 
been filed on behalf of the Federation but incidentally not 
through the learned Attorney General for Pakistan but 
through an “Attorney”. It bears stamp and purported 
signatures of one Muhammad Kamran, Section Officer, 
Ministry of Law & Justice, Government of Pakistan, 
Islamabad. It is not clear on whose instructions the said 
Muhammad Kamran, Section Officer has filed this 
Const.P.29 of 2017, etc. 
53
concise statement purporting or at least attempting to 
support 
the 
Petitioners. 
Some 
provisions 
of 
the 
Constitution and the International Instruments have 
reproduced without any worthwhile value addition. In 
view of the rather simplistic and redundantly nature of 
its contents and in view of the contentions of the learned 
Attorney General for Pakistan, we find it unnecessary 
even to comment upon these concise statements.  
72.  
However, it has been noticed that it is stated 
therein that the matter be referred to the Parliament for 
framing the law to govern the Procedure of the SJC. A 
reference was also made by Mr. Hamid Khan, learned Sr. 
ASC to the Judges (Inquiry) Act, 1968, in India as an 
example of supplying of procedure by the Parliament in 
respect of the disciplinary proceedings against a serving 
Judge of a Superior Court.   
73.   
As we have already noted above that with 
regard to the process of accountability of Judges, a 
special Constitutional Forum of SJC has been created by 
the 
Constitution. 
The 
proceedings 
before 
it 
are 
administrative in nature where a Judge is judged by his 
own 
peers. 
Though 
the 
findings 
which 
may 
be 
recommendatory in nature but the same have bestowed 
Const.P.29 of 2017, etc. 
54
with an element of quietus or collusiveness as is obvious 
from the judgments of this Court referred to and 
reproduced herein above. Thus, in our Constitution, a 
conscience effort has been successfully made to insulate 
this process from undue influence of subjugation by 
other two Organs of the State.  
74.   
In India, a different path has been chosen and 
the power to impeach a Judge was conferred upon the 
Parliament. The procedure, in this behalf, was supplied 
in the Act of Parliament i.e. The Judges (Inquiry), Act, 
1968. The aforesaid Act has been promulgated in India in 
terms of Article 124(5) of the Constitution of India, which 
reads as under:- 
“124. (5) Parliament may by law regulate 
the procedure for the presentation of an 
address and for the investigation and 
proof of the misbehaviour or incapacity of 
a Judge under clause (4).”   
 
75.  
A perusal of our Constitution reveals that no 
such parallel provision exists in our Constitution. A 
glance at the Legislative List also does not, prima facie, 
conclusively settle the matter. In the circumstances, if 
any such legislation is enacted, more particularly, if by it 
an attempt is made by the other institution of the State 
to infiltrate and influence the process under Article 209 
Const.P.29 of 2017, etc. 
55
of the Constitution in the garb of procedure such a law 
may be of questionable constitutionality, both with 
regard to legislative competence and for being violative of 
the principles of Independence of Judiciary.  
76.   
We have noted that the SJC, a forum 
constituted by the Constitution is vested with the implied 
power to do all such things necessary to fulfill its 
mandate, more particularly, to design and formulate the 
procedure itself. However, such procedure must be just 
and fair as has been held by this Court in its judgment 
reported as The University of Dacca through its Vice-
Chancellor and another v. Zakir Ahmed (PLD 1965 SC 
90) in the following terms (para E to G at pp 103-104): 
 
“ 
From 
a 
careful 
review 
of 
the 
decisions cited before us it appears that 
wherever any person or body of persons is 
empowered to take decisions after ex post 
facto investigation into facts which would 
result in consequences affecting the 
person, property or other right of another 
person, then in the absence of any 
express words in the enactment giving 
such power excluding the application of 
the principles of natural justice, the 
Courts of law are inclined generally to 
imply that the power so given is coupled 
with the duty to act in accordance with 
such principles of natural justice as may 
be 
applicable 
in 
the 
facts 
and 
circumstances of a given case. 
 
 
 
What these principles of natural 
justice are it is not possible to lay down 
with any exactness, for, they have been 
variously defined in various cases, as was 
Const.P.29 of 2017, etc. 
56
pointed out by the Judicial Committee in 
the case of the University of Ceylon v. 
Fernando. Tuker, L.J., said in Russel v. 
Duke of Norfolk (1) “the requirements of a 
natural justice must depend on the 
circumstances of the case, the nature of 
the enquiry, the rules under which the 
Tribunal is acting, the subject-matter that 
is being dealt with, and so forth.” 
Nevertheless, the general consensus of 
judicial opinion seems to be that, in order 
to ensure the “elementary and essential 
principles of fairness” as a matter of 
necessary implication, the person sought 
to be affected must at least be made 
aware of the nature of the allegations 
against him, he should be given a fair 
opportunity 
to 
make 
any 
relevant 
statement putting forward his own case 
and “to correct or controvert any relevant 
statement 
brought 
forward 
to 
his 
prejudice.” Of course, the person, body or 
authority concerned must act in good 
faith, but it would appear that it is not 
bound to treat the matter as if it was a 
trial or to administer oath or examine 
witnesses in presence of the person 
accused or give him facility for cross-
examining the witnesses against him or 
even to serve a formal charge-sheet upon 
him. Such a person or authority can 
obtain information in any way it thinks 
fit, provided it gives a fair opportunity to 
the person sought to be affect to correct 
or contradict any relevant statement 
prejudicial to him. In other words, “in 
order to act justly and to reach just ends 
by just means” the Courts insist that the 
person or authority should have adopted 
the above “elementary and essential 
principles” unless the same had been 
expressly excluded by the enactment 
empowering him to so act.”  
  
 
77.  
There can also be no escape from the fact that a 
conclusion drawn by the SJC would obviously stigmatize 
the Judge, whose capacity or conduct is being inquired 
Const.P.29 of 2017, etc. 
57
into. Furthermore, as has been held by a larger Bench of 
this Court in the case of Chief Justice of Pakistan Iftikhar 
Muhammad Chaudry’s case (supra) noted above, the 
proceedings before the SJC though essentially fact 
finding in nature and recommendatory in effect are 
nevertheless bestowed with an element of quietus or 
finality, which aspect of the matter can never be over 
emphasized or lost sight of. In this view of the matter, the 
necessity for fairness and fair play, in the procedure 
adopted becomes all the more imperative. There is no 
serious dispute between the counsel appearing before us, 
in this behalf, as none of them did or could have 
canvassed that the procedure to be adopted by the SJC 
can be unfair or unjust. This is obviously essential in 
order to ensure security of tenure of the Judge which is, 
as already stated above, is the primary purpose of Article 
209 of the Constitution. The controversy perhaps 
pertains to the standards of due process, which need to 
be observed and whether the SJC Procedure of Enquiry 
2005, more particularly, paragraph 13 thereof meets 
such standards. There also appears to be a consensus 
amongst the learned counsel, learned Attorney General 
for Pakistan and the learned Amicus Curiae that except 
Const.P.29 of 2017, etc. 
58
for the disputed paragraph 13 of the SJC Procedure of 
Enquiry 2005, the remaining procedure is compliant with 
the universally accepted principles of due process 
including as reflected in our Constitution and the various 
pronouncements by this Court. The Judge whose 
conduct or capacity is the subject matter of proceedings 
under Article 209 of the Constitution is issued a notice 
informing him of the allegations against him. He is 
afforded a right of hearing, the findings are based on 
evidence, which are recorded in his presence. He is also 
afforded the right to cross examine the witnesses and 
produce evidence in his defence. He has a right to be 
represented by a counsel of his own choice. He is 
informed of the findings. Thus, there is no dispute or 
controversy, in this behalf, except with regard to 
paragraph 13 of the SJC Procedure of Enquiry 2005 
which is reproduced hereunder for ease of reference:-   
“Proceedings of the Council not to be 
reported.- (1) Proceedings of the Council 
shall be conducted in camera and shall 
not be open to public.  
 
(2) 
Only the findings of the proceedings 
shall be allowed to be reported. 
 
(3) 
Proceedings of the meetings of the 
Council or any other steps that 
Council may take shall not be 
reported, unless directed otherwise.”   
  
 
 
 
 
 
 
 
Const.P.29 of 2017, etc. 
59
78.  
It is now settled law that rather than a literal 
approach a purposive approach to interpretation must be 
adopted. In this behalf, this Court in its judgment 
reported as Dr. Raja Aamer Zaman v. Omar Ayub Khan 
and others (2015 SCMR 1303) held as follows:- 
“8. … The Courts in Pakistan have 
always preferred a purposive rather than 
a literal interpretation of Statutory 
Instruments. Reliance in this behalf may 
be made to the judgments, reported as 
Hudabiya Engineering (Pvt) Limited v. 
Pakistan through Secretary, Ministry of 
Interior, Government of Pakistan and 6 
others 
(PLD 
1998 
Lahore 
90) 
and 
Federation of Pakistan through Ministry 
of Finance and others v. Messrs Noori 
Trading Corporation (Private) Limited and 
14 others (1992 SCMR 710).” 
 
79.  
A similar view has been taken by this Court in 
the cases reported as Messrs Gadoon Textile Mills and 
814 others v. WAPDA and others (1997 SCMR 641), Rana 
Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad 
Khan and another (2012 SCMR 6) and Muhammad 
Nawaz Chandio v. Muhammad Ismail Rahu and others 
(2016 SCMR 875). 
80.  
Thus, we must attempt to discover the purpose 
and true intent of paragraph 13 of the SJC Procedure of 
Enquiry 2005, which alone would hold the key to its 
proper contextualized interpretation. Various countries of 
the world have chosen either of two paths with regard to 
Const.P.29 of 2017, etc. 
60
the process of accountability of Superior Court Judges. 
Broadly speaking, one path is through an open process 
including through a proceeding before a forum outside 
the judiciary e.g. Parliament in the full gaze of the public 
eye while the other path is of an insulated process of 
being dealt with by one’s own peers. Our Constitutional 
Dispensation in principle has adopted the latter course of 
action. The framers of the Constitution of 1973 appear to 
have made a value judgment that such a course of action 
is best suited to our societal and cultural ethos, where 
allegations are routinely made against all and sundry 
without any qualms about the truthfulness or otherwise 
of such allegations. Perhaps the framers of the 
Constitution may have been inspired, in this behalf, by 
the mystical saint of Kasur who said that we live in the 
“Age of Suspicion”, where people immediately believe the 
worst about others. It is said that the Judges like 
Ceasar’s wives ought to be above suspicion. An allegation 
no matter how baseless, if permitted to be made public, 
such Judge and his capacity to dispense justice would be 
irreparably prejudiced. It is perhaps being sensitive to 
this aspect of the matter, Mr. Muhammad Makhdoom Ali 
Khan, learned Sr. ASC urged that the first part of the 
Const.P.29 of 2017, etc. 
61
process before the SJC i.e. in terms of paragraphs 7 and 
8 of determining whether there was, prima facie, 
sufficient material to proceed against the Judge, should 
be, in its entirety, conducted in camera without any 
information pertaining thereto reaching the public 
domain, as obviously if the allegations are allowed to be 
made public and subsequently found not worthy of being 
proceeded with, the said Judge and his reputation would 
be tarnished irreparably making it impossible for the 
Judge in question to perform his judicial functions on the 
one hand and would belittle the judiciary as a whole on 
the other. This for all intents and purposes would 
amount to stopping a Judge from performing his official 
junctions. Consequently, unless adequate provisions 
exist for keeping malicious and baseless accusation from 
being publicized not only the security of tenure of the 
Judge would be jeopardized but also the Independence of 
Judiciary would be compromised. Thus, it is not too 
difficult to fathom than the purpose of paragraph 13 of 
the SJC Procedure of Enquiry 2005 is to protect, both the 
Judge whose conduct and capacity is to be inquired into 
and the Institution of the judiciary. This interpretation 
Const.P.29 of 2017, etc. 
62
appears to be obvious and not seriously contested by the 
other learned counsel for the Petitioners.  
81.   
The practice of in camera hearings in matters 
of judicial accountability is not novel; rather it has 
found endorsement by Legal Practitioners from all over 
the world. The First World Conference on the 
Independence of Justice held at Montreal on 10th June, 
1983 
adopted 
a 
Universal 
Declaration 
on 
the 
Independence of Justice. It relates to International 
Judges as well as National Judges. On the question of 
“Discipline and Removal”, it is recommended as under: 
  
“2:35  
The proceedings for discipline 
of Judges shall ensure fairness to the 
Judge and the opportunity of a full 
hearing. 
 
  
2.36  
With 
the 
exception 
of 
proceedings before the legislature, the 
proceedings for discipline and removal 
shall be held in camera. The Judge, may 
however, request that the hearing be held 
in public, subject to a final and reasoned 
disposition 
of 
this 
request 
by 
the 
disciplinary 
Tribunal. 
Judgments 
in 
disciplinary proceedings, whether held in 
camera or in public, may be published.”  
 
82.  
At this juncture, it may be appropriate to refer 
paragraph 5.2 of the International Project of Judicial 
Independence of the International Association of Judicial 
Independence 
and 
World 
Peace 
(Mount 
Scopus 
International 
Standards 
of 
Judicial 
Independence) 
Const.P.29 of 2017, etc. 
63
presented by the learned Attorney General for Pakistan, 
which reads as follows:  
“5.2 With the exception of proceedings 
before the Legislature, the procedure for 
discipline should be held in camera. The 
judge may however request that the 
hearing be held in public and such 
request should be respected, subject to 
expeditious, 
final 
and 
reasoned 
disposition 
of 
this 
request 
by 
the 
disciplinary 
tribunal, 
Judgments 
in 
disciplinary proceedings, whether held in 
camera or in public, may be published.” 
 
83.  
Before we venture to interpret paragraph 13 of 
the above in the context of the lis at hand it may be 
appropriate to recapitulate, in this behalf, the learned 
counsels for the Petitioners, who, by relying upon the 
judgments, both from our jurisdiction and abroad 
contended that an open trial is generally considered to be 
a sine qua non for due process and for a just and fair 
determination of rights. In the alternative paragraph 13 is 
for the benefit of the Petitioners they can always waive 
such benefit and privilege. There can be no cavil with the 
said proposition when examined in its indivisible entirety. 
In the context of its purposive interpretation of paragraph 
13, the possibility of a person waiving his right of in 
camera proceedings cannot be excluded more so when 
examined in the context in paragraph 13(3) of the SJC 
Procedure of Enquiry 2005. However, such waiver is 
Const.P.29 of 2017, etc. 
64
neither absolute nor can totally trump the discretion and 
jurisdiction of the SJC in this behalf. 
 
To what extent such principles are attracted to 
proceedings before the SJC. Be that as it may, such 
proceedings necessarily be conducted fairly, justly and in 
accordance with the principles of Natural Justice in all its 
amplitude as stated herein above.   
84.  
Before proceeding further, it may be pertinent 
to point out at this juncture that at the cost of repeation 
that the SJC is not a Court but more akin to a Domestic 
Tribunal, whose proceedings primarily are administrative 
in nature. The concept of openness attributable to a 
Court does not necessarily apply in its entire amplitude 
to administrative proceedings before Domestic Tribunal. 
The inquiry before the SJC is not a spectator sport nor 
can there be any requirement of proceedings being 
conducted in a Courtroom. We need to keep reminding 
ourselves that the SJC is not a Court but a Domestic 
Tribunal conducting administrative proceedings.  
85.  
Be that as it may, the antithesis of an open trial 
is not in camera proceedings but a “secret trial”. This 
distinction was very ably drawn by Mr. Munir A. Malik, 
learned Sr. ASC an Amicus Curiae. Such “secret trial” 
Const.P.29 of 2017, etc. 
65
usually means prosecution of an unknown person for an 
unknown charge with unknown findings based on 
unknown evidence conducted without counsel. The final 
verdict alone may be disclosed through a dead body, 
which may or may not be handed over to the near and 
dear ones. Such trials are associated with the purges in 
the Soviet Union in the 1930’s. In camera proceedings, 
on the other hand, pertain to the proceedings conducted 
by excluding unrelated persons, which course of action is 
not unknown to our jurisprudence.  
86.  
Though as a general principle, the proceedings 
that determine civil rights of the parties or the criminal 
liability of an accused are held in “Open Court”, as 
justice should not only be done but should also be seen 
to be done. We have already noticed that the SJC is a 
Domestic Tribunal and the proceedings before it are 
essentially administrative in nature yet even if the SJC 
Procedure of Enquiry 2005 is subjected to the highest 
possible standard i.e. of a criminal trial, it would be 
noticed that Section 352 Cr.P.C., in this behalf, though 
enjoins an open trial but its proviso empowers the 
Presiding Officer to hold the trial in camera by excluding 
the public at large from its proceedings. It is in the above 
Const.P.29 of 2017, etc. 
66
backdrop, that none of the counsel at the bar urged that 
in no eventuality the proceedings before the SJC could be 
held in camera. The only matter in issue was the 
conditions which necessitated or permitted the same 
existed as in certain circumstances, public or private 
interest may demand that such proceedings be held in 
camera.  
87.  
The requirement of an open trial or open justice 
and the exceptions thereto have evolved over the last 
Century. The House of Lords in the oft-quoted case 
reported as Scott v. Scott [1913] AC 417, laid down a 
rather stringent and relevantly inflexible rule for open 
justice. In the Century that followed periodically more 
exceptions to the said rule were recognized by the Courts 
perhaps by the acknowledgment of competing rights and 
other considerations as is obvious from the judgment of 
the Supreme Court of United Kingdom reported as Khuja 
v. Times Newspapers Limited and others (2017 SCMR 
1605). In the latter judgment, the process of the evolution 
of the exceptions to the general rule of open justice has 
been charted out in great detail. This Court too has 
considered this aspect of the matter, even with reference 
to criminal proceedings in its various cases, including the 
Const.P.29 of 2017, etc. 
67
judgments reported as Zulfikar Ali Bhutto v. The State 
(PLD 1979 SC 53), Mrs. Shahida Zahir Abbasi and 4 
others v. President of Pakistan and others (PLD 1996 SC 
632) and Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad 
Yusuf (PLD 1963 SC 51). An examination of the aforesaid 
judicial pronouncements reveals that the recognized 
reasons for departure from the general principles of an 
open trial appear to be:-  
 
 
(1) 
For public safety; 
 
(2) 
To avoid the disclosure of a secret process 
or of secret document; 
 
(3) 
Where the Court is of the opinion that 
witnesses are hindered in, or prevented 
from, giving evidence by the presence of 
the public; 
 
(4) 
The matter falls within the parental 
jurisdiction of the Court to safeguard the 
interests of the ward or lunatics; 
 
(5) 
To protect the dignity of the victim in 
matters pertaining to rape and other 
sexual offences;  
 
(6) 
To protect the privacy where necessary in 
matters 
pertaining 
to 
matrimonial 
disputes;  
 
(7) 
To 
avoid 
the 
making 
of 
baseless 
scandalous and scurrilous allegations so 
as to defame the Judges and the Courts in 
order to publicize the same so as to 
subvert due process. 
 
(8) 
Where a party adopts a hostile defiant and 
abuse attitude in Court; and  
Const.P.29 of 2017, etc. 
68
 
(9) 
To preserve the decorum and dignity of the 
Court. 
 
The 
aforesaid 
list 
is 
obviously 
not 
exhausted. 
Furthermore, the aforesaid exceptions are also obviously 
subject to the test of reasonability and proportionately. 
Needless to say such exceptions are not dependent upon 
the consent of the parties. None of the counsels, not even 
those appearing on behalf of the Petitioners have really 
disputed the above mentioned exceptions to general 
principle of an open trial. It is also not disputed by the 
learned counsel that even where a person whose conduct 
and capacity is being inquired into waives his right to an 
in camera proceedings the SJC may decline such request 
and conduct its proceedings in camera if any of the 
exceptions to open justice enumerated above exist.  
88.  
Even otherwise, as per the case of the Petitioner 
as canvassed by Mr. Muhammad Makhdoom Ali Khan, 
learned Sr. ASC, the first part of the proceedings before 
the SJC for the purpose of determining whether a, prima 
facie, case is made out before the proceedings against the 
Judge in question should be held in camera lest baseless 
allegations are made public to the determent of the Judge 
concerned. The same logic must also extend to the latter 
Const.P.29 of 2017, etc. 
69
part of the proceedings as a Judge must obviously be 
presumed to be innocent unless there is an adverse 
finding returned regarding his capacity and capability by 
the SJC. The name of the Judge will be dragged through 
the mid even though the allegations may be eventually 
rejected by the SJC.  
89.  
Furthermore, as we have already determined 
the purpose of paragraph 13, it is, inter alia, to protect 
the Judge whose conduct and capacity as is being 
inquired into from slanders and baseless allegations, we 
cannot lose sight of the fact that the Members of the SJC 
are also the Chief Justice and senior Judges of the 
Supreme Court, the senor most Chief Justices of the 
High Courts whose persons and reputation too need to be 
protected from frivolous baseless attacks. This may 
sound a little strange and perhaps paranoid to the 
stranger as the person being inquired into is no less a 
person than a Judge of a Superior Court. However, we 
stand wiser through experience and, in this behalf, with 
great regret, we are constrained to refer to the last 
paragraph of the Report of the SJC in the reference 
against the Petitioner Mr. Justice Shoukat Ali, referred to 
and reproduced in the case reported as Chief Justice of 
Const.P.29 of 2017, etc. 
70
Pakistan Iftikhar Muhammad Chaudhry (supra), which 
reads as follows: 
“Before we part with this report we would 
like to place on record that although the 
respondent 
behaved 
in 
a 
most 
objectionable manner throughout, we 
have not allowed this act to influence our 
decision. This proceeding has been an 
extremely 
unpleasant 
and 
taxing 
experience 
for 
the 
Council. 
The 
respondent forgot that he was appearing 
before five of the most experienced Judges 
in the country, and from the very 
beginning, either by design or from force 
of habit, took up an arrogant and insolent 
attitude. At one stage he even insulted the 
Council in its face when the Council with 
great reluctance had to issue a notice for 
his committal for contempt. It was only 
through the timely intervention of Mr. 
Anwar, his counsel that a very ugly 
situation was avoided, for, otherwise the 
council would not have hesitated to 
punish the respondent suitably. He also 
did not hesitate to falsely and maliciously 
malign 
the 
Council 
before 
other 
Authorities and even attempted at one 
stage to intimidate the council by threats. 
Finally, he staged a walk-out even after 
the evidence was closed. Even so, the 
Council did not deny Mr. Manzoor Qadir 
the opportunity to address the Council on 
the respondent's behalf. Indeed, the 
Council has throughout, as admitted by 
Mr. Manzoor Qadir himself, not only 
shown 
the 
maximum 
amount 
of 
consideration 
but 
even 
treated 
the 
tantrums of the respondent with the 
indulgence they did not deserve.” 
 
90.  
Thus, if there is a reasonable apprehension 
that the Judge whose capacity or conduct is being 
inquired into or his lawyers are likely to indulge in 
Const.P.29 of 2017, etc. 
71
scurrilous and scandalous allegations against the SJC 
or its Members especially with the intention to 
publicize the same so as to hamper the SJC from 
fulfilling it obligations, the SJC can always direct that 
the proceedings before it be conducted in camera, even 
if such Judge has waived his privilege of in camera 
proceedings. Such a course of action would be in 
accordance with the well recognized and established 
exceptions to open justice. Such exceptions have been 
enumerated herein above. In camera proceedings can 
also be resorted to despite the desire of a person whose 
conduct and capacity is being inquired into, if any of 
the aforesaid exceptions, in the information of the SJC 
exist.  
91.  
The 
Fundamental 
Right 
of 
freedom 
of 
information as conferred and guaranteed by Article 19A 
of the Constitution was also referred to more so by the 
amicus curia than the counsel for the Petitioners to 
contend that the proceedings of the SJC should be held 
in 
public. 
The 
aforesaid 
Article 
is 
reproduced 
hereunder for ease of reference: 
  
“19A. Every citizen shall have the right to 
have access to information in all matters 
of public importance subject to regulation 
Const.P.29 of 2017, etc. 
72
and reasonable restrictions imposed by 
law.” 
 
The said Article pertains to the openness and 
transparency of the Government and its functioning. In 
order to give effect to this Article “Right of Access to 
Information Act, 2017”, has been promulgated. The 
provisions of the said Act need to be looked at very 
carefully in the context of its applicability to the SJC 
and the exceptions must be mentioned in the said 
enactment. The findings of the SJC are made public by 
virtue of paragraph 13(2) of the SJC Procedure of 
Enquiry 2005. The issue would only relate to 
interlocutory orders and proceedings.  
  
Be that as it may, a perusal of the afore-
mentioned Article caters for a right of all the citizens to 
access of information in all matters of public 
importance. 
Though, 
it 
may 
overlap 
with 
the 
independent claim of an accused or a party to litigation 
to a fair trial through an open justice system but in 
essence in the context of the lis at hand it pertains to 
the right of access of an unrelated citizen to the 
proceedings of the SJC. In this context, it is 
appropriate to point out that by virtue of paragraph 13 
of the SJC Procedure of Enquiry 2005, the findings of 
Const.P.29 of 2017, etc. 
73
the SJC are made public. Thus, the matter is limited to 
the conduct of the proceedings and interlocutory if any 
only.  
92.  
The matter of interpretation and application 
of Fundamental Rights came up for interpretation 
before this Court in the case reported as Pakistan 
Muslim League (N) through Khawaja Muhammad Asif, 
M.N.A. and others v. Federation of Pakistan through 
Secretary Ministry of Interior and others (PLD 2007 SC 
642), wherefrom certain principles, in this behalf, can 
be gleaned. Firstly, a Fundamental Right may not be 
absolute. Secondly, 
in 
case 
of 
contending and 
conflicting rights, an equilibrium has to be maintained 
through 
a 
harmonious 
interpretation 
of 
the 
Constitution as an organic whole. And thirdly, 
individual rights may have to give way to the rights for 
the benefits of the community at large.  
93.  
Examining Article 19A of the Constitution in 
the above context reveals that the right conferred 
thereby is not absolute but subject to regulation and 
reasonable restriction, as is mentioned therein. The 
Courts and other Authorities have long recognized the 
practice of holding proceedings in camera or subject to 
Const.P.29 of 2017, etc. 
74
other restrictions qua disclosure as an exception to the 
open justice principle. These exceptions are well 
defined 
and 
based 
on 
the 
law 
or 
judicial 
pronouncements. In the instant case, the embargo to 
release information with regard to unsubstantiated and 
unproven allegations against a Judge regarding his 
conduct or capacity is based on the principle not only 
on protecting the reputation of the Judge which may be 
sullied beyond redemption even if the allegations are 
finally rejected but also for the protection of the 
Institution of judiciary. This exception based on the 
judgments of this Court referred to above and are 
necessary for the Independence of Judiciary by 
insulating it from being blackmailed into subjugation. 
Thereby very right of access to justice would be at 
stake. Consequently, the necessity of proceedings in 
camera before the SJC (not its findings) based on the 
law as laid down by this Court must prevail over the 
right of an unconcerned citizen to such information as 
Article 19A of the Constitution pertains to right to 
information not right to entertainment through the 
malicious satisfaction of idle curiosity. If reasons are 
sufficient for a departure from open justice policy the 
Const.P.29 of 2017, etc. 
75
same would also be sufficient to be a reasonable 
restriction of freedom of information. 
94.  
The aforesaid leads to an irresistible conclusion 
that the SJC is a unique forum created by the 
Constitution. It is not a Court but more akin to a 
Domestic Disciplinary Tribunal whose proceedings are 
administrative in nature and recommendatory in affect. 
But its findings have an element of conclusiveness. 
The SJC Procedure of Enquiry, 2005 reflects the implied 
authority of the SJC to do all acts and employ all means 
necessary to exercise the jurisdiction conferred and to 
fulfill its mandate in accordance with the Constitution, 
hence, are legally valid and effective in law.  
95.  
Paragraph 7 of the SJC Procedure of Enquiry, 
2005 is valid and intra vires to the Constitution. 
Paragraph 
13 
also 
does 
not 
offend 
against 
the 
Constitution or any provision thereof. The obvious 
purpose of paragraph 13 is the protection of the rights 
and reputation of the person whose conduct and capacity 
is being inquired into and the protection of the Institution 
of the judiciary, including the Members of the SJC, 
hence, must be interpreted in such context. Therefore, 
the process of determination whether any prima facie 
Const.P.29 of 2017, etc. 
76
case has been made for proceedings under Article 209 of 
the Constitution in any event should be held in camera 
and the subsequent proceedings should also be held in 
camera unless the person being inquired into waives 
such right. However, in such circumstances, since in 
camera proceedings are not alien to our jurisprudence 
and can always be resorted to by the SJC even in the 
absence of the consent of the parties for well defined 
reasons which have been enumerated in the preceding 
paragraphs, including (but not limited to) in the 
eventuality of an apprehension that the person whose 
conduct and capacity is being inquired into or his 
counsel 
may 
resort 
to 
baseless, 
scandalous 
and 
scurrilous allegations against the SJC or any of its in 
order to publicize the same and thereby frustrate the very 
proceedings of the SJC.   
96.  
Consequently, the question regarding conduct 
of proceedings through an open justice as requested by 
the Petitioners needs to be revisited and decided afresh 
by the SJC notwithstanding and uninfluenced by its 
Order dated 18.05.2017 in the light of the observations 
made herein above. 
Const.P.29 of 2017, etc. 
77
97.  
Hence, these Constitution Petitions bearing 
No.29 and 36 of 2017 are disposed of in the above 
terms.  
 
 
 
       Judge 
 
 
 
 
 
       Judge 
 
 
 
 
 
       Judge 
 
 
 
 
 
       Judge  
 
 
 
 
‘APPROVED FOR REPORTING’ 
    
 
 
 
      Judge 
Mahtab and Safdar/* 
 
 
 
Announced on ____________ at _____________ 
 
 
 
 
 
 
 
 
 
 
 
Judge 
