Nobody is above the law


Not even the CJ

The Honorable Chief Justice of Pakistan on 23rd June picked up and tossed mobile phone of a sessions judge after admonishing him for using the device during court hours. During a surprise visit to the sessions court in Larkana, the honourable chief justice expressed anger after he spotted the mobile phone of Additional District and Sessions Judge Gul Zameer Solangi on his desk. The chief justice picked up the mobile phone of the judge and threw it on his desk.

It is important to understand that no one is above the law, not even the chief justice of Pakistan. The code of conduct for the judges of the supreme court and the high courts provides the guidelines for the superior court’s judges in regards to their conduct in the course of their services. Article-II of the code of conduct for the superior court’s judges clearly states that while dispensing justice, the judge should be strong without being “rough”, “polite” without being weak. Whereas Article- IX of the code of conduct states that in the judicial work, and relations with other judges, a judge should act always for the maintenance of harmony within his own court, as well as among all courts and for the integrity of the institution of justice.

Even Article 10-A of the constitution on Pakistan protects the right of a person for the opportunity of hearing

If any junior or senior judicial officer (Judge) is involved in any sort of misconduct whether legal misconduct, or misconduct in terms of failure to perform essential duties which are cast on a judge, he/she should only be penalised by the competent authority (chief justice of the province) after fulfilling the legal formalities including proper departmental inquiry or disciplinary proceedings after the issuance of show-cause notices or official warnings. It is worth mentioning that no immunity from disciplinary actions or misconduct had been provide in the provisions of judicial officers protection act, nevertheless the law requires that the case of a judicial officer (judge) to be examined treating him/her to be differently than other civil servants. The law requires the authority to consider the entire service record of the judicial officer, their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall judicial work and reputation. The nature of judicial service is such that it cannot afford to suffer continuance in service of persons with doubtful integrity, or who have lost their utility in order to keep the stream of justice unpolluted. Similarly, a Judge cannot be stamped with the label of ‘doubtful integrity’ in absence of tangible materials.

The superior courts have laid down several principles for the guidance of subordinate courts. In Ghulam Sarwar vs the State which was reported in 1984 in Pakistan Criminal Law Journal 2588, the high court held that, “It is really unfortunate that the magistrates are playing with the liberty of human beings in routine. They think as if they are accountable to none.” The High Court had also held that the magistrates should realise that they are answerable and accountable to the high court for the illegalities and irregularities done by them and that the high court under section 439, CrPC. is quite competent to examine the correctness of the orders passed by them and in case they violate the instructions given by high court, serious action may be taken against them.

However the event of throwing the cell phone of the session judge in Larkana and humiliating him, without issuance of the show cause notice, was certainly against the true spirit and meaning of the basic principle of natural justice “Audi Alteram Partem” (hear the other side) i.e no one should be condemned unheard or hear the other side. Natural justice requires that no one should be punished without giving the opportunity of being heard. Even Article 10-A of the constitution on Pakistan protects the right of a person for the opportunity of hearing.The principle embodied in the Maxim “Audi Alterm Partem”, is mandatory and essential in any disciplinary proceedings. It is a settled law that any action without giving the other party the opportunity to explain his position, would deemed to be illegal, ultra vires, and not sustainable in the eyes of the law. Legal profession requires the respect for the law, lawyers, judicial officers and judicial institution.