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Article: 209 Supreme Judicial Council

209.  Supreme Judicial Council.(1) There shall be a Supreme Judicial Council of Pakistan, in this Chapter referred to as the Council.(2)     The Council shall consist of—(a)  the Chief Justice of Pakistan;(b)  the two next most senior Judges of the Supreme Court; and

(c)  the two most senior Chief Justices of High Courts.

Explanation. For the purpose of this clause, the inter se seniority of the Chief Justices of the High Courts shall be determined with reference to their dates of appointment as Chief Justice 3[otherwise than as acting Chief Justice], and in case the dates of such appointment are the same, with reference to their dates of appointment as Judges of any of the High Courts.

(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, shall act as a member of the Council in his place.

(4)  If, upon any matter inquired into by the Council, there is a difference of opinion amongst its members, the opinion of the majority shall prevail, and the report of the Council to the President shall be expressed in terms of the view of the majority.

4[(5) If, on information from any source, the Council or the President is of the opinion that a Judge of the Supreme Court or of a High Court—

(a) may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or

(b) may have been guilty of misconduct, the President shall direct the Council to, or the Council may, on its own motion, inquire into the matter.]

(6)  If, after inquiring into the matter, the Council reports to the President that it is of the opinion,—

(a)  that the Judge is incapable of performing the duties of his office or has been guilty of misconduct, and

(b)  that he should be removed from office, the President may remove the Judge from office.

(7)  A  Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article.

(8)  The Council shall issue a code of conduct to be observed by Judges of the Supreme Court and of the High Courts.

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Footnotes:

1.  Section 9 of the Constitution (Second Amendment) Order, 1982, P.O. No. 5 of 1982, inserted the said words in Art. 208, (w.e.f. March 22, 1982).

2. Article 5 of the schedule to the Constitution (Second Amendment) Order, 2007, President’s Order No. 6 of 207 (P.O. No. 6 of 2007), promulgated by President Musharraf, in the period of Constitutional deviation (between November 3, 2007 and December 15, 2007), w.e.f. December 14, 2007, purported to  substitute the colon in place of the full stop at the end of clause (1) of Article 208 and added the following new proviso thereafter:

“Provided that in case of the High Court for Islamabad Capital Territory the rules may be made with the approval of the President.”

As P.O. No. 6 of 2007, including the said purported Amendment, was not validated by the Parliament, after the general elections of 18th of February, 2008, they were held to void ab initio and of no legal effect in the Short Order dated 31st of July, 2009  and the detailed judgment of the Supreme Court dated 30th of September, 2009 in C.P. No. 09 of 2009  Sindh High Court Bar Association v/s Federation of Pakistan and others.

3.  Section 11 of the Constitution (First Amendment) Act 1974 (33 of 1974), added the said words in the Explanation to clause (1) of Art. 209, (w.e.f. May 4, 1974).

4. Section 76 of the Constitution (Eighteenth Amendment) Act, 2010 (10 of 2010), substituted clause (5) of Art. 209, in its present form, (w.e.f. April 19, 2010), in place of the said clause as adopted in 1973, that read :

(5)  If, on information A[from any source, the Council or]the President is of the opinion that a Judge of the Supreme Court or of a High Court,—

(a)  may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or

(b)  may have been guilty of misconduct,

the President shall direct the Council to B[, or the Council may, on its own motion,] inquire into the matter.

A-B. Section 10 of the Constitution (Seventeenth Amendment) Act, 2003 (3 of 2003), validated the substitution and insertion, respectively, in clause (5) of Art. 209, (w.e.f. December 31, 2003).  Item 20 of the schedule to C.E.O. No. 24 of 2002, substituted the said words and comma in place of the words and comma “received from the Council or from any other source,” in clause (5) of Art. 209 and also inserted the said commas and words after the words “Council to” therein, (w.e.f. August 21, 2002)

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Comparative Table of Article 209 of the Constitution of Pakistan, 1973:
Constitution of Pakistan 1962 :
128
Constitution of Pakistan 1956 :

Constitution   of   India    1950:

Government of India Act 1935:

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Leading & Latest Cases on Article 209 of the Constitution of Pakistan, 1973 :

AL-JEHAD TRUST
FEDERATION OF PAKISTAN
MALIK ASAD ALI AND OTHERS
FEDERATION OF PAKISTAN THROUGH SECRETARY, LAW,JUSTICE AND PARLIAMENTAY
ZAFAR ALI SHAH AND OTHERS
GENERAL PERVEZ MUSHARRAF CHIEF EXECUTIVE OF PAKISTAN AND OTHERS
Mr. JUSTICE GHULAM HYDER LAKHO,HIGH COURT OF SINDH, KARACHI
FEDERATION OF PAKISTAN through Secretary Law, justice parliamentary
SYED ZAFAR ALI SHAH AND OTHERS
GENERAL PERVEZ. MUSHARRAF, CHIEF EXECUTIVE OF PAKISTAN AND OTHERS
P L D 2008 SC 178  TIKA IQBAL MUHAMMAD KHAN  GENERAL PERVEZ MUSHARAF & OTHERS
SINDH HIGH COURT BAR ASSOCIATION THROUGH ITS SECRETARY AND ANOTHER
FEDERATION OF PAKISTAN THROUGH SECRETARY, MINISTRY OF LAW AND JUSTICE
P L D 2010 SC 61 CHIEF JUSTICE OF PAKISTAN IFTIKHAR MUHAMMAD CHAUDHRY PRESIDENT OF PAKISTAN THROUGH SECRETARY AND OTEHRS

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