ISLAMABAD: The Supreme Court set aside the Supreme Judicial Council (SJC)’s opinion and the notification to remove Shaukat Aziz Siddiqui as the judge of the Islamabad High Court (IHC). A five-judge bench, headed by Chief Justice Qazi Faez Isa, and comprising Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Syed Hasan Azhar Rizvi, and Justice Irfan Saadat Khan, on Friday, announced the judgment, which they had reserved on January 23, 2024.
In view of the judgment, Justice Siddiqui shall be deemed to have retired as a judge of the IHC and he will be entitled to receive all the benefits and privileges due to a retired judge.
The judgment said 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.
The SJC on 11 October 2018 had sent its opinion for the removal of Shaukat Siddiqui as the judge of the IHC, to President Dr Arif Alvi, who on the same day had issued the notification of his removal.
Justice Siddiqui on 26th October 2018 filed a petition under Article 184(3) of the Constitution. The Islamabad Bar Association and the Karachi Bar Association through advocate Salahuddin Ahmed filed the constitution petitions and objected to Shaukat Siddiqui’s removal without first holding an inquiry.
The judgment said that under Article 209(5) and (6) of the constitution an inquiry has to be conducted by the SJC before determining whether a Judge is guilty of misconduct. Article 195 of the Constitution renders further protection to a judge by stating that a judge cannot be removed from office except “in accordance with the Constitution”, and the Constitution does not permit the removal of a judge from office without first holding an inquiry with regard to any alleged misconduct.
It noted that Justice Siddiqui was not given an opportunity to establish his allegations nor brought face-to-face with those he had accused. 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.”
The court said that the evidence was recorded in the case of Justice Akhlaque Hussain before rendering the opinion that he should be removed from his office. Similarly, in the case of Justice Shaukat Ali, the SJC recorded evidence of witnesses before formulating its opinion and recommending his removal.
In the case of Mazahar Ali Akbar Naqvi the SJC also 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 Naqvi was guilty of misconduct and should have been removed as a judge of the Supreme Court.
The judgment said that 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. He was also not dealt with in accordance with law, as prescribed by Article 4 of the Constitution, and in particular action detrimental to him, including his reputation, was taken.
And those against whom the allegations were levelled should have been provided an opportunity to cross-examine him and also be provided an opportunity to testify and rebut the allegations. Article 210 of the Constitution empowers the SJC to order the attendance of any person or the discovery or production of any document, but the SJC did not exercise this power.
“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 proper legal process to ascertain the veracity of the allegations and take action accordingly’. 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 requires an inquiry by the Supreme Judicial Council.’
The court said that 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.
Copyright Business Recorder, 2024
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