Says removal, not forced retirement, justified where public confidence is lost
Police officers walk past the Supreme Court of Pakistan building in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
The Supreme Court has emphasized that public trust is the cornerstone of the judiciary and has ruled that a judge whose reputation has been found to be bad cannot continue to hold a judicial office even if a specific act of corruption has not been conclusively proven.
The decision came in an eight-page judgment penned by Justice Shahid Waheed while restoring a notice of removal of a judicial officer from duty.
A three-member bench headed by Justice Waheed examined whether a judicial officer found to be in bad repute, though not proven guilty of a specific act of corruption, could be retained in service and whether compulsory retirement could serve as a legally viable alternative to removal.
Answering these questions in the negative, the court found that integrity occupies a central place in the judiciary and that the continuation of a judge becomes impossible when public confidence in his character is lost.
“For a judge, integrity is binary because the people’s trust in the judiciary is the cornerstone of an Islamic welfare state,” the judgment said.
The court noted that judges are bound by a “code of chivalry” that requires essential qualities beyond legal knowledge and professional competence.
“Legal knowledge and skill are, of course, their basic qualities. But this intellectual equipment alone is not sufficient to perform their duties correctly. They must also be equipped with the moral virtue of impartiality, which is in fact the very breath of their legal life,” the judgment states.
The court emphasized that judges serve as the point where the abstract principles of law become a lived reality for citizens.
“The judge is the point where the abstraction of the law becomes a lived reality. The parties do not come to argue with statutes, but to hear from a human conscience that is clothed in the office of a judge. If this conscience is in doubt, the law itself becomes suspect,” the judgment states.
The court further noted that the judiciary derives its authority not from power but from legitimacy, which rests on two fundamental pillars: competence and integrity.
“Competence can be tested in judgments. Integrity is tested in reputation,” the court said.
The judgment warned that even a legally sound decision can lose credibility if delivered by a judge whose reputation has been tarnished.
“A judge may give sound law and yet, if his name has a taint in the public mind, the judgment will be received with suspicion,” it said. The court maintained that the ethical standards expected of judges go beyond simply avoiding wrongdoing.
“Ethically speaking, the judicial office requires more than the absence of wrongdoing. It requires the presence of unblemished character. The standard for a judge is not ‘not guilty’ but ‘beyond reproach’.”
The judgment explained that unlike elected officials, judges exercise power without political accountability and often without immediate review, making public confidence in their integrity indispensable.
“The only check is the trust of the people. Therefore, it becomes impossible to retain any judge once his reputation is found to be bad,” the court ruled. It further noted that judicial institutions require not only actual integrity but also apparent integrity.
“The judicial institution requires not only integrity but also the appearance of integrity,” the judgment added.
Citing Islamic principles governing public office, the court noted that authority is considered a trust (am?na) to be exercised with fairness and justice.
The court then turned to the question of punishment and considered whether compulsory retirement was an appropriate punishment for a judicial officer whose reputation had been found to be tarnished.
According to the judgment, the guiding principle in determining punishment is proportionality, which requires that the punishment corresponds to the seriousness of the offense and the damage caused.
The court held that the real harm in such cases is the loss of public confidence in the judiciary. “The judicial officer in this case, by compromising his impartiality, not only lost public confidence but also stifled his judicial career,” the judgment said.
It noted that when public confidence in the integrity of a judge is broken, the damage extends beyond the individual concerned and affects the very rule of law.
“The moment public confidence in the integrity of the judicial officer was broken, the breach ran through the entire fabric of the rule of law and undermined the integrity of the judicial institution itself. His continuation in office had become incompatible with the interests of the institution,” the court said.
The judgment drew a clear distinction between compulsory retirement and removal from service, describing the difference as substantive rather than merely semantic.
“Compulsory retirement may be imposed in appropriate circumstances where the objective is to weed out dead wood or where retention is no longer administratively feasible,” it noted.
However, the court ruled that compulsory retirement cannot be used in cases involving disreputable judges because such an outcome would allow them to leave office with benefits despite the damage caused to public trust.
“In any case, it cannot be imposed on a judge with a bad reputation, as it would imply that the reputation is negotiable, which would defeat the very purpose of the punishment,” the judgment said.
The court concluded that dismissal from service is warranted where a judge’s conduct affects both personal integrity and the moral standing of the institution, thereby undermining public confidence in the judiciary.
“As a result, dismissal from service becomes warranted when the conduct affects the integrity of a judge and the morals of the institution and harms public confidence,” the court ruled.
The Supreme Court criticized the approach taken by the tribunal in the case, noting that it had failed to understand the distinction between compulsory retirement and removal.
“It appears that the Court overlooked this distinction: that when a disreputable or corrupt judge is removed, the judicial institution begins to heal because a specific tumor has been excised,” the judgment concluded.
