ISLAMABAD: Justice Sayyed Mazahar Ali Akbar Naqvi, a judge of the Supreme Court, on Friday, in his preliminary objections sought recusal of three members of the Supreme Judicial Council (SJC), which is set to hear misconduct complaints against him
Ten complaints were filed against Justice Naqvi. The Council, by a majority of three to two, on October 28, 2023, decided to issue him show-cause notices, together with copies of the complaints, and to seek his reply within 14 days of the receipt thereof, whereas, the members in minority stated that they needed more time to consider the complaints against him.
The Council is headed by Chief Justice of Pakistan Qazi Faez Isa, and comprises two most senior judges of the Supreme Court – Justice Sardar Tariq Masood and Justice Ijazul Ahsan –, Lahore High Court Chief Justice Muhammad Ameer Bhatti and Balochistan High Court Chief Justice Naeem Afghan.
Justice Naqvi in 18 pages’ filed a reply to show cause notice before the Secretary SJC. He stated that the preliminary objections are not a reply to the show cause notice dated October 28, 2023, either on issues of jurisdiction or of maintainability. It is also not a response on merits.
“The proceedings against me have been conducted in a manner which is ex facie discriminatory and these; therefore, violate Article 25 of the Constitution,” wrote Justice Naqvi.
He raised objections on the participation of three judicial members, namely, CJP Faez, Justice Sardar Tariq, and Justice Naeem Afghan, and sought their recusal based on “bias” and other grounds. He stated that the three senior judges ought not to hear the complaints against him in the interest of propriety, justice, and fairness.
“Their participation in the proceedings resulting in a show cause notice being issued to me taints those proceedings, inter alia, with bias and makes all orders passed in such proceedings as being without lawful authority and of no legal effect,” he wrote.
Justice Naqvi further noted in the reply that nine out of the 10 complaints against him refer to and rely on his alleged audio leaks.
“The authenticity of those audio leaks has never been established. It is a matter of record that pursuant to SRO 596(I)/2023 dated May 19, 2023 (“SRO”) issued under the Pakistan Commissions of Inquiry Act, 2017, an inquiry commission was constituted by the Federal Government, inter alia, to inquire into the authenticity, correctness and veracity of the alleged audio leaks.
“Justice Qazi Faez Isa was appointed as the Chairman of the inquiry commission. Further, Justice Naeem Akhtar Afghan (who is also a member of the SJC) was appointed as a member of the inquiry commission. The proceedings were commenced on May 22, 2023, by Justice Qazi Faez Isa and Justice Naeem Akhtar Afghan along with Justice Aamer Farooq.
“An order was passed on the same date. Subsequently, the Supreme Court by order dated May 26, 2023, suspended the operation of the SRO and stayed the proceedings of the inquiry commission. The proceedings are sub-judice. “The same alleged audio leaks which were referred to the inquiry commission are subject matter of the complaints against me before SJC,” he wrote.
He submitted that “in the interest of justice and fairness”, CJP Isa and Justice Akhtar should recuse themselves from hearing the complaints against him as chairperson and member of the SJC, respectively.
With regards to Justice Masood, Justice Naqvi submitted that the former had already expressed an opinion against him and was; hence, disqualified from hearing those complaints as SJC member.
“First, the letters dated April 03, 2023, and April 26, 2023 (referred above) co-authored by Justice Sardar Tariq Masood establish that he has already formed a view in the matter.
“Second, Justice Sardar Tariq Masood took three months and 27 days in giving his opinion on the complaints. As per press reports the complaints were referred by the then Chief Justice of Pakistan and Chairman of SJC Justice Umar Ata Bandial to Justice Sardar Tariq Masood for his opinion on May 29, 2023. The opinion, however, was submitted on September 25, 2023.
“It was submitted only after Justice Umar Ata Bandial had retired as chief justice of Pakistan. It is clear from the chronology of events that the opinion was deliberately delayed till the composition of the SJC had changed after retirement of Justice Umar Ata Bandial.
“Further, the submission of the report was also leaked to the press and became a subject of press comment,” contended Justice Naqvi.
Justice Naqvi further stated that CJP Faez on March 4, 2020, as a member of the Judicial Commission of Pakistan (JCP), opposed his nomination as a judge of the apex court. “It was also reported that Justice Qazi Faez Isa wrote a detailed dissenting note raising objections, inter alia, in respect of certain judgments of mine as a Judge of the Lahore High Court, in particular the judgment in the case of late General Pervez Musharraf, wherein a Full Bench of the Lahore High Court presided by me set aside the judgment of the Special Tribunal, my income tax returns and my assets declaration,” said the initial reply.
Justice Naqvi further stated on November 02, 2023, I filed a request with the Secretary, JCP for provision of minutes of the meeting of the JCP held on March 04, 2020, along with the dissenting note given during the meeting by Justice Qazi Faez Isa. Reminders were sent to the Secretary, JCP on November 04, 2023 and November 06, 2023, respectively.
He stated on November 7, the secretary declined his request. The secretary informed Justice Naqvi that proceedings of the JCP are held in-camera and therefore, minutes of the meeting could not be provided.
“It is submitted that denial of information which directly and materially affects my case before the SJC is in violation of my Fundamental Rights of fair trial, due process and access to information.
“Further, it is curious that while it is claimed that the JCP proceedings are confidential and its minutes cannot be made available to me a press release was issued to the public at large informing about the SJC proceedings and orders passed therein subjecting me to a media trial and causing serious prejudice to me,” wrote Justice Naqvi.
He added that he repeated his request for the aforementioned materials, writing to the secretary that “otherwise serious prejudice shall be caused to me”.
He further stated that as per media reports, Justice Masood had used derogatory language against him and disclosed the outcome of the SJC proceedings at the oath-taking ceremony of Justice Irfan Saadat Khan.
Moreover, wrote Justice Naqvi, Justice Masood also has a complaint against him before the SJC.
“In view of the above, in the interest of propriety, justice and fairness, Justice Sardar Tariq Masood ought not to hear the complaints against me. His participation in the proceedings resulting in a show cause notice being issued to me taints those proceedings, inter alia, with bias and makes all orders passed in such proceedings as being without lawful authority and of no legal effect,” concluded Justice Naqvi.
Copyright Business Recorder, 2023
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