‘Mala-fide action taken, SJC ignored fair trial’: SC sets aside Justice Shaukat’s dismissal

ISLAMABAD: The Islamabad High Court ex-judge Shaukat Aziz Siddiqui had the last laugh on Friday after a five-member bench of the Supreme Court declared his removal from office as illegal.

The bench observed that the Supreme Judicial Council (SJC) ignored the requirement of fair trial and due process under Article 10-A of the Constitution while recommending his removal from office for misconduct.

The five-member bench — headed by the Chief Justice of Pakistan (CJP) Qazi Faez Isa — set aside the SJC’s opinion to the president dated October 11, 2018 and the notification dated 11 October 2018, stated to have been issued on the advice of prime minister and his cabinet ministers.

The other members of the bench were Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhel, Justice Syed Hassan Azhar Rizvi and Justice Irfan Saadat Khan.

The court held that Justice Siddiqui shall be deemed to have retired as a judge of the Islamabad High Court and he will be entitled to all the benefits and privileges.

Earlier, on January 23, the court had reserved the verdict on the petition filed by Justice Shaukat Aziz Siddiqui challenging the notification terminating his service on the charge of misconduct.

In the speech, the former judge had made remarks against the involvement of certain officers of an executive organ of the state in the affairs of the judiciary and their alleged efforts to manipulate the formation of high court benches.

On Friday, the 23-page judgment, authored by Chief Justice Qazi Faez Isa, held that Justice Siddiqui had undoubtedly levelled very serious allegations against General Faiz Hameed, who was then serving in the Inter-Services Intelligence (‘ISI’) and a few of his subordinates whom he accused of manipulating certain sensitive cases in the Islamabad High Court and in the Accountability Court, which was under the jurisdiction of the Islamabad High Court.

The court, however, noted that Justice Siddiqui was not allowed to establish his allegations nor brought face to face with those he had accused. “When we noted this lapse, we issued notices to all those against whom he made allegations and provided them with an opportunity to admit/deny them. All of them have denied their stated involvement,” said the judgment.

Therefore, the court noted that it was all the more necessary for the SJC to have inquired into the matter and to have determined who was telling the truth. The court further noted that the SJC did not give any credence to Justice Siddiqui’s own words and the contents of his replies. It noted that the SJC assumed that they were false and concluded that Justice Siddiqui was guilty of misconduct.

The court held that Justice Siddiqui was not given an opportunity to establish the veracity of his allegations, which was incumbent on the SJC when the same formed the basis of Justice Siddiqui’s removal from office. “The Fundamental Rights enshrined in the Constitution include the right to a fair trial and due process (Article 10A) and all citizens, including judges, must be dealt with in accordance therewith, however, Justice Siddiqui was deprived of his Fundamental Rights of fair trial and due process. Article 209 does not stipulate that in determining whether a Judge is guilty of misconduct he is denuded of the Fundamental Rights nor permits the SJC to act contrarily to them,” says the judgment.

The court recalled that in all prior cases when proceedings were initiated against judges which resulted in their removal from office, it was done after the recording of evidence adding that evidence was recorded in the case of Justice Akhlaque Hussain before rendering the opinion that he should be removed from his office.

Similarly, the court noted that in the case of Justice Shaukat Aziz Siddiqui, the SJC recorded the evidence of witnesses before formulating its opinion and recommending his removal adding that in the recent case of Mazahar Ali Akbar Naqvi, the SJC recorded the testimony of 14 witnesses, who produced a number of documents, the opportunity to cross-examine the witnesses was granted and only then did the SJC find that Mazahar Ali Akbar Naqvi was guilty of misconduct and should have been removed as a judge of the Supreme Court.

The court held that the SJC had dispensed with the holding of an inquiry but did not do so for any compelling or justifiable reason and did so by negating Justice Siddiqui’s Fundamental Right to a fair trial and due process. “In not holding an inquiry, by not providing Justice Siddiqui an opportunity to establish his allegations and without recording of evidence it cannot be stated that Justice Siddiqui had received a fair trial and that due process requirements were met,” the court held adding that he was also not dealt with in accordance with the law, as prescribed by Article 4 of the Constitution and in particular action detrimental to him, including his reputation, was taken. “The Constitution guarantees that a judge’s tenure is secure because it makes for an independent judiciary while enabling a judge to be removed from office if he commits misconduct, after providing him with a fair trial and due process, as mandated by Article 10A of the Constitution”, says the judgment.

However, the court noted that Justice Siddiqui was not provided with an opportunity to establish the truth of the allegations he levelled but was punished for levelling them. The court further noted that given the above-noted transgressions, the bar of jurisdiction contained in Article 211 of the Constitution would not be applicable in the instant case since the action, as it was taken, against Justice Siddiqui constituted mala fide and the SJC had acted coram non-judice. The court noted that Justice Siddiqui had levelled serious allegations and these were noted in the impugned Report/Opinion which included that the then Major General Faiz Hameed, DG-C of ISI, and some of his subordinates had wanted cases ‘pertaining to Faizabad sit-in, BOL Media Group, AXACT’ and those of Muhammad Nawaz Sharif, former Prime Minister of Pakistan, and his daughter, Maryam Nawaz Sharif, to be decided in a particular manner.

The court further noted that if the SJC after conducting an inquiry had determined that Justice Siddiqui had levelled false allegations he would have been guilty of misconduct, but without inquiring into the matter it could not be said that he had levelled false allegations. “We cannot be unmindful of the fact that two complaints, one from the Chief of Army Staff and another from the Government of Pakistan, both of which wanted ‘to initiate the proper legal process to ascertain the veracity of the allegations and take action accordingly”, says the judgment adding that an inquiry was all the more necessary since neither the Chief of Army Staff’s Secretariat nor the Government of Pakistan had determined the veracity of the allegations. Justice Khosa too in his initial opinion had stated ‘that the matter required an inquiry by the Supreme Judicial Council’.

The court noted that Anwar Mansoor Khan who was then the Attorney-General had undermined his credibility by his own conduct adding that the SJC was also apparently misled by the Attorney-General’s understanding of the law, in contending that the SJC could go beyond the provisions of the Code of Conduct to determine what constitutes misconduct by a judge. “This is also concomitant in ensuring the independence of the judiciary since judges must not be left vulnerable to the likes and dislikes of the members of the SJC or to the vicissitudes of governments or to that of complainants,” says the judgment.

Unfortunately, the court noted that the delay that occurred in hearing and deciding these petitions meant that in the interregnum Justice Siddiqui attained the age of sixty-two years, at which age a judge of the high court retires, therefore, Justice Siddiqui cannot be restored to the position of judge. “In view of the aforesaid reasons the SJC’s Report/Opinion, dated 11 October 2018, which was submitted to the President and the Notification No. F.9(2)/2018-A.II, dated 11 October 2018, stated to have been issued on the advice of the Prime Minister and his Cabinet of Ministers are set aside,” the court held.

“Consequently, Justice Siddiqui shall be deemed to have retired as a judge of the Islamabad High Court and he will be entitled to receive all the benefits and privileges due to a retired judge, by allowing these petitions in the above terms”, the judgment concluded.

Meanwhile, the Supreme Court will take up next week the Intra Court Appeals (ICAs) against its judgment declaring the trial of 103 civilians in military courts, allegedly involved in the May 9 incidents, as unconstitutional. A six-member larger bench of the apex court — headed by Justice Amin-ud-Din Khan — will hear on March 25, ICAs filed by the federal and provincial governments against the judgment on the matter at 11:30 am. The other members of the bench are Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed, Justice Musarrat Hilali, and Justice Irfan Saadat Khan.