ISLAMABAD Nov 07 (TNS): A five-member bench of the Supreme Court will hear today a petition filed by Islamabad High Court Justice Shaukat Aziz Siddiqui seeking to stay misconduct proceedings against him.
The five-member bench comprising Justice Gulzar Ahmed, Justice Sheikh Azmat Saeed, Justice Dost Muhammad Khan, Justice Ijazul Ahsan and Justice Sajjad Ali Shah has been constituted to hear into the case of the IHC judge, who is accused of misconduct but seeks an open trial after the Supreme Judicial Council (SJC) had decided to try him in-camera.
Through his petition, Justice Siddiqui has raised the fundamental question that there is no prescribed procedure available to conduct an inquiry or hold trial of a judge belonging to the superior judiciary. The available procedure, he insists, was introduced without any mandate from the Constitution or any other statute.
The bench will hear Justice Siddiqui’s application seeking a stay of the SJC’s proceedings against him.
Presently, though Justice Siddiqui challenges his in-camera trial, he does not seek the quashment of his reference. He wants an open trial.
Justice Siddiqui’s case was previously heard on Nov 2 by a two-member bench comprising Justice Saeed and Justice Qazi Faez Isa. The bench had referred the matter to Chief Justice Mian Saqib Nisar for the formation of a larger bench for hearing.
Justice Siddiqui had not only questioned the legality of the SJC’s procedures but found it in violation of Article 10A of the Constitution for denying an open and transparent trial.
He said that he had a fundamental right to insist that an inquiry into his conduct be conducted publicly.
In his petition, Justice Siddiqui referred to the SJC’s observation, “It is on account of the sanctity of the institution and the dignity of the applicant and other judges whose matters are inquired by the SJC that in-camera proceedings are expedient…. It is in the larger interest of the judiciary that the proceedings are not conducted in open court, as the issues brought before the SJC and allegation levelled may ultimately be proved to be false, frivolous and vexatious.”
In response to the above SJC’s observation, Justice Siddiqui not only quoted past SC judgments but also referred to the case of former CJP Justice (retd) Iftikhar Muhammad Chaudhry, who in 2007 successfully challenged the SJC’s proceedings and got an open trial.
He added, “The sanctity of no institution is protected by making its cloistered virtue. There is no greater protection than free speech and a free press for the independence of constitutional institutions.”
In response to SJC’s observation that open trial may hurt the dignity of the petitioner, he said, “The petitioner has nothing to hide, his dignity is not compromised if the proceedings are held in the open.” He added, “It is not in the interests of the judiciary if the proceedings are held in-camera. It will damage the image of the institution. The very guardians of justice cannot deny their brethren the protection of a public hearing and due process.”
He added, “Due process of law required that a person be given a reasonable opportunity to defend himself. This is not guaranteed in a secret trial.”
The IHC judge also reminded the apex court of its past judgment in which it was observed, “Keeping in view the controversial background of the present case, needless to mention here, that open trial inspires public confidence in the judicial process while in-camera proceedings give rise to suspicions and misgivings in the mind of common man….”
Justice Siddiqui also pointed out the present accountability process for the judges did not contain any provision of appeal or revision. He noted, “The inquiry conducted by the SJC and the conclusion it reaches once it completes this inquiry culminates in report to the president. This report is either adverse or favourable. If it is favourable, the proceedings end. If it is adverse, it results in a judge’s removal from his constitutional office. A negative report not only strips the judge of office and pensionary rights and benefits but also tars his reputation forever.”
He added, “Second, no appeal, revision or review lies against an adverse report. A judge adversely affected if left without a remedy. The president plays no effective role in the matter. He can neither sit in appeal over the adverse report nor can follow it.”
He said that such a denial of appeal or revision is both unconstitutional and un-Islamic.
Questioning the SJC’s procedure, he said, “The procedure provided in the Supreme Judicial Council Procedures of Inquiry, 2005 thereto speaks for itself. A SCN (show cause notice) is issued to a judge. The judge responds to it and the SJC convenes its meeting. It issues notice to the AGP or in his absence a senior counsel who becomes the prosecutor against the judge. Evidence is led. Witnesses are summoned. They are examined and cross-examined. It is, therefore, submitted that the proceedings before the SJC albeit named inquiry are in fact a trial.”
He added that the Constitution has not granted the SJC the powers to create a procedure for its conduct. “No law provides it this power. The SJC Procedure of Inquiry, 2005 is created by the SJC. It has neither any constitutional nor statutory cover.”
He said that the SJC procedure is ultra vires the Constitution in so far as it violates the basic fundamental rights of the petitioner.
Some other legal experts also have reservations about the working of the SJC.
