ISLAMABAD: The Supreme Court (SC) on Thursday announced verdict on the petitions of sitting judges of Islamabad High Court and Lahore High Court, seeking their trial by the Supreme Judicial Council (SJC) in open court and maintaining that the SJC inquiry proceeding is correct.
A five-member larger bench of the apex court headed by Justice Sheikh Azmat Saeed and comprising Justice Mushir Alam, Justice Maqbool Baqir, Justice Sardar Tariq Masood and Justice Mazhar Alam Khan Miankhel, announced verdict on the petitions filed by Justice Shaukaht Aziz Siddiqui of Islamabad High Court (IHC) and Justice Farukh Irfan of Lahore High Court (LHC).
Justice Shaukat Aziz Sidiqui of Islamabad High Court had and Justice Farukh Irfan of Lahore High Court challenged in the supreme court the order of the Supreme Judicial Council passed on May 18, 2017, rejecting their pleas seeking trial in the open court.
The verdict written by Justice Sheikh Azmat Saeed held that the question regarding conduct of proceedings through an open court as requested by the petitioners needs to be revisited and decided afresh by the Supreme Judicial Council (SJC) notwithstanding and uninfluenced by its order dated 18.05.2017 in the light of the observations made herein above.
It is pertinent to mention here that the Supreme Judicial Council is currently inquiring into allegations of misconduct against the said petitioners. They had challenged the vires of the provisions of the Supreme Judicial Council Procedure of Enquiry 2005, more particularly, paragraphs 7 and 13, with the contentions that the impugned order and the aforesaid paragraph 13 of the above-said SJC Procedure of Enquiry 2005, offends against their fundamental rights and the SJC Procedure of Enquiry 2005 may be declared in its entirety to be unconstitutional.
Similarly, the constitution of the SJC has also been called into question and was contended that one of the members is disqualified to participate in such proceedings in view of Article 209(3) of the Constitution of the Islamic Republic of Pakistan, 1973.
They had prayed the apex court that all the proceedings taken by the SJC be declared as null and void.
The court held that the Supreme Judicial Council is a unique forum created by the Constitution. “It is not a court but more akin to a Domestic Disciplinary Tribunal whose proceedings are administrative in nature and recommendatory in effect”, says the verdict but added that its findings have an element of conclusiveness.
The verdict ruled that the SJC Procedure of Enquiry, 2005 reflects the implied authority of the SJC to do all acts and employ all means necessary to exercise the jurisdiction conferred and to fulfill its mandate in accordance with the Constitution, hence, are legally valid and effective in law.
“Paragraph 7 of the SJC Procedure of Enquiry, 2005 is valid and intra vires to the Constitution. Paragraph 13 also does not offend against the Constitution or any provision thereof”, the verdict ruled.
It observed that the obvious purpose of paragraph 13 is the protection of the rights and reputation of the person whose conduct and capacity is being inquired into and the protection of the institution of the judiciary, including the members of the SJC, hence, must be interpreted in such context.
Therefore, the process of determination whether any prima facie case has been made for proceedings under Article 209 of the Constitution in any event should be held in camera and the subsequent proceedings should also be held in camera unless the person being inquired into waives such right.
However, in such circumstances, since in camera proceedings are not alien to our jurisprudence and can always be resorted to by the SJC even in the absence of the consent of the parties for well-defined reasons which have been enumerated in the preceding paragraphs, including (but not limited to) in the eventuality of an apprehension that the person whose conduct and capacity is being inquired into or his counsel may resort to baseless, scandalous and scurrilous allegations against the SJC or any of its in order to publicise the same and thereby frustrate the very proceedings of the SJC.
The court cited its judgments reported as Zulfikar Ali Bhutto vs. The State (PLD 1979 SC 53), Mrs Shahida Zahir Abbasi and others v President of Pakistan and others (PLD 1996 SC 632) and Syed Ali Nawaz Gardezi vs. Lt Col Muhammad Yusuf (PLD 1963 SC 51).
The court held that an examination of the aforesaid judicial pronouncements reveals that the recognised reasons for departure from the general principles of an open trial appear to be for public safety, to avoid the disclosure of a secret process or of secret document, where the court is of the opinion that witnesses are hindered in, or prevented from, giving evidence by the presence of the public, as well to protect the dignity of the victim in matters pertaining to rape and other sexual offences; to protect the privacy where necessary in matters pertaining to matrimonial disputes and to avoid the making of baseless scandalous and scurrilous allegations so as to defame the judges and the courts in order to publicise the same so as to subvert due process and to preserve the decorum and dignity of the court.
