Islamabad (Web Desk): The Supreme Court (SC) on Tuesday reserved its verdict on a petition filed by former Islamabad High Court’s (IHC) senior puisne judge Shaukat Aziz Siddiqui against his removal.
A five-member bench led by Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Hasan Azhar Rizvi and Justice Irfan Saadat Khan heard the petition.
The proceedings were broadcast live on the SC’s website.
The former IHC judge had challenged a decision of the Supreme Judicial Council (SJC) about his dismissal from service and an October 11, 2018 notification under which he was removed for a speech he had delivered at Rawalpindi Bar Association.
In his speech, the judge had accused the Inter-Services Intelligence (ISI) of influencing the court proceedings and forming benches of choice.
On Monday, former director general of ISI, retired Lt General Faiz Hameed submitted his response to Justice Siddiqui’s petition.
In his response, the former spymaster rejected the allegations of his involvement in the constitution of IHC benches to prolong the detention of Pakistan Muslim League-Nawaz (PML-N) supremo and former premier Nawaz Sharif and his daughter Maryam Nawaz.
The former ISI chief claimed Justice Siddiqui had dragged him into the case for no reason.
In the previous hearing on December 15, notices had been issued to Gen Hameed, retired brigadier Irfan Ramay, former IHC chief justice Anwar Khan Kasi and former SC registrar Arbab Muhammad Arif.
The SC asked Siddiqui to nominate to nominate ex-ISI chief General Faiz Hamid and others in the plea against his dismissal.
In today's proceeding, Khawaja Haris appeared as Gen Hameed’s and brigadier Ramay’s counsel while Wasim Sajjad was present as Justice Kasi’s lawyer. Hamid Khan appeared as the petitioner’s counsel.
During the hearing, CJP Isa observed that all respondents have agreed to the fact that a proper inquiry was not conducted in the case. He remarked that the SJC was a powerful body and had the authority to summon anyone.
Shaukat Siddiqui's lawyer, Advocate Hamid Khan, argued that the SC should declare the SJC's sacking of the former as unconstitutional.
The CJP remarked that we cannot decide a case on coin toss. "What if the allegations are not true? How can we decide the case when we don't know if the allegations are true or false? But we want to set an example through these cases. The allegations were made publicly. If the allegations are found to be false after an inquiry, will the decision to remove the judge stand? We asked those who were accused to be made parties. Who will get to the bottom of these allegations? We are now looking to find a solution to the problem. The other party can say that the allegations were never investigated," Justice Isa observed.
At this Siddiqui's counsel suggested that the solution was to nullify the action of the council, and the removal of the judge by the president. "The SC should form a commission to investigate Siddiqui's allegations," he said.
"How should we form a commission? Should we refer the matter to the council again? No one is telling the truth," the CJP said.
Ex-ISI chief Faiz Hameed’s counsel Khawaja Haris said that the court should only focus on the judge’s public speech.
The CJP remarked that the case concerned the independence of the judiciary and the working of the judicial council. “The council’s working should be per the law. The council did not fulfil the requirements before taking action. How can the SC decide the case under these circumstances?” Justice Isa maintained, asking the attorney general to also weigh in on the matter.
Member of the SC bench, Justice Jamal Khan Mandokhail asked whether a judge should have made such a speech.
At this, Justice Isa remarked that “we cannot ignore facts”. He said judges address bar associations. “The question is not about the speech, but what was said in it,” he added, stating that Article 19 does not define a code of conduct for judges. The judges’ code cannot allow speeches, he said referring to the culture of judges in the US participating in debates.
The CJP added that the court could conduct an inquiry itself. “It is not a good practice to accuse a subsidiary body of the government,” the CJP said clarifying that he will not refer to the premier intelligence agency as an institution in itself.
Meanwhile, Siddiqui’s counsel argued that the entire inquiry should be annulled, and the matter sent back to the SJC. At this, the CJP questioned if the SC had the power to do this. Khan stressed that the council did not conduct a complete inquiry.
However, the former ISI chief’s counsel said that the matter could not be referred back to the council because Siddiqui’s term as a judge had also ended. “His speech alone is enough to prove that he showed misconduct; he also ridiculed the judiciary in his speech,” the counsel stated.
Justice ISA then inquired which provisions of the code of conduct were violated by the judge's speech and asked the counsel to read the same.
The CJP further said that the speech can also be looked at from the perspective of bringing into knowledge, rather than for publicity.
When the lawyer for the former ISI chief contended that Siddiqui could have brought the same to the then-CJP's knowledge, Justice Isa remarked that there should be a standard for accepting the words of a chief justice and of a judge.
Emphasising that the nation has endured a lot, the CJP maintained that he is more concerned about the reputation of the institution.
Referring to Siddiqui's removal, CJP Isa said the judge was removed without an inquiry. He maintained that legal procedures should have been adhered to in the case and all parties have agreed that there was no proper inquiry conducted.
The attorney general, referring to the Afia Zia Shehrbano case, stated that the judge's removal was against established legal requirements.
He maintained that action cannot be taken against a judge after removal or resignation and added that an appeal has been filed against the provision.
The AGP then requested the court to review the Shehrbano case and link it with other similar cases, saying that "Shaukat Siddiqui's status as a retired judge will become invalid if the action of the council is invalidated".
Subsequently, Justice Isa narrated the order of the day and reserved the verdict on four questions in the case: What would be the result if the inquiry against Siddiqui was not conducted as per the law and Constitution; can the ex-judge be given relief if his appeal is approved given that he turned 62 in June; can the SC send a matter back to the SJC; whether Siddiqui’s speech was in violation of the code of conduct.
The CJP said that the case could be fixed for hearing again if the need arose and directed all the counsels to submit their written responses.
It is pertinent to mention that the Supreme Judicial Council (SJC) had found Siddiqui guilty of misconduct over a speech he delivered in July 2018 before the Rawalpindi District Bar Association.
Siddiqui had hurled allegations against personnel of a security agency, claiming that they manipulated the judicial proceedings.
In November, he had filed a miscellaneous application with the apex court for early hearing of his petition against the SJC’s decision.
The case was fixed for hearing earlier in December 2023 after the judge filed a miscellaneous application in November of the last year with the top court to conduct an early hearing of his plea against the decision by the Supreme Judicial Council (SJC) on his dismissal.