SJC’s proceedings against retired judge: Ex-ISI chief, Brig Ramay submit replies

ISLAMABAD: Former ISI chief Lt Gen Faiz Hameed (Retd) and Brig Irfan Ramay (Retd) submitted that to initiate or continue proceedings of Supreme Judicial Council (SJC) against a retired judge under Article 209 of the Constitution is violative of Article 195.

Lt Gen Faiz Hameed (Retd) and Brig Irfan on Wednesday submitted their reply through advocate Khawaja Haris to the legal questions, which a five-member bench, headed by Justice Qazi Faez Isa, on January 23, 2024, before reserving the judgment, had framed. Shaukat Siddiqui, Lt Gen Faiz Hameed, Brig Irfan Ramay, ex-CJ IHC Anwar Kasi, and former Registrar SC Arbab Muhammad Arif had to file concise statements on the questions.

The SC framed questions whether an inquiry was conducted by the SJC, and if not, was it a constitutional and/or legal requirement, and if it was so, the consequence of not conducting an inquiry?

Whether the SJC did not have to conduct any inquiry because the subject speech was admittedly made and whether it in itself constituted misconduct as defined in the Code of Conduct to be observed by the judges of the superior courts?

The reply said that no inquiry in terms of recording of statements of witnesses etc was carried out by the Council, the fact remains that the Council nevertheless strictly followed the Enquiry Procedure while conducting its proceedings in the matter relating to the speech by him.

Khawaja Haris stated that if the Court comes to this conclusion that it was a constitutional or legal requirement to conduct an “inquiry” which was not fulfilled in the petitioner’s case, then the further question, as framed, needs to be addressed i.e. what would be the consequence for not conducting an inquiry?

He submitted that in such a contingency the entire proceedings of the SJC would stand vitiated, as being violative of a mandatory provision of the constitution, and fundamental rights of the petitioner under Articles 9, 10-A, 14, and 24 of the constitution. He further submitted that in terms of clause 3 of Article 184 the appropriate order to be passed by the bench in setting aside his removal from office would be to direct the federal government to issue the notification of his retirement with effect from 30th June 2021 and to provide him all his salary and emoluments as well as the pensionary benefits.

Khawaja Haris stated that it has been stance throughout that Brigadier Irfan Ramay and Lt-Gen Faiz Hameed allegedly made attempts to influence the administration of justice in cases pending or expected to come up before the Islamabad High Court (IHC). The very purpose of initiating or continuing proceedings against a judge under Article 209 is to ascertain the “professional fitness” of a judge (PLD 2010 SC 61) as such, the moment he ceases to be a judge, the entire purpose of initiating or continuing proceedings stands nullified.

He submitted that any provision which confers upon the SJC any power, duty or obligation to initiate or continue against a retired judge proceedings under Article 209 of the constitution would not only be violative of Article 195 as well of Article 209 of the Constitution, it would also be tantamount to re-writing of the constitution by the apex court.

Copyright Business Recorder, 2024