Supreme Court reserves verdict on ex-judge Shaukat Aziz’s appeal against his removal

The Supreme Court on Tuesday reserved its verdict on an appeal filed by former judge Shaukat Aziz Siddiqui against his removal from service, reported 24NewsHD TV channel.

The development came as a five-judge bench, by Chief Justice of Pakistan Qazi Faez Isa and consisting Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Hasan Azhar Rizvi, and Justice Irfan Saadat, heard the appeal filed by former Islamabad High Court (IHC) senior puisne judge Shaukat Aziz Siddiqui against his removal.

The proceedings of the case were broadcast live on the apex court’s website.

Advocate Hamid Khan represented the former IHC judge in the case, while Khawaja Haris was the lawyer for former Director General of Inter-Services Intelligence (ISI) Lt-Gen (retd) Faiz Hameed.

The apex court reserved its verdict after hearing arguments from all the sides in the case.

The former judge had challenged a Supreme Judicial Council (SJC) decision about his dismissal from service and an Oct 11, 2018 notification under which he was removed for a speech he had delivered at Rawalpindi Bar Association.

A day earlier, former ISI director general retired Lt Gen Faiz Hameed submitted his response to Justice Siddiqui’s petition. In his response, he rejected the allegations of his involvement in the constitution of IHC benches to prolong the detention of former premier Nawaz Sharif and his daughter Maryam Nawaz.

The ex-spymaster claimed Justice Siddiqui had dragged him into the case for no reason.

In the last hearing, notices had been issued to Gen Faiz Hameed, retired brigadier Irfan Ramay, former IHC chief justice Anwar Khan Kasi and former SC registrar Arbab Muhammad Arif.

During the proceedings on Tuesday, CJP Isa remarked that the problem was not in making the speech but it’s in the text in this case. He maintained “If a judge is removed just for speaking, half the judges would go home.”

“Many judges speak at bar council meetings. The problem is not in the speech, but in the text of the speech,” he said and added “A judge’s code of conduct does not prevent him from speaking. The problem is when you make allegations in your speech. Making a speech is your right, anybody’s right.”

The Chief Justice said the judges will also be interviewed in Britain and participate in arguments in the US. “The eyes of the whole nation are on us. Here is the question of respecting the constitutional institutions,” said the chief justice, asking what order the bench should issue in such circumstances.

Justice Mandohail asked if it was right for the judge to make the allegations similar to Siddiqui. “We should not forget the facts,” replied the CJP.

Justice Mandohail further remarked: “If the allegations are true, is Shaukat Siddiqui’s conduct as a judge appropriate?”

The CJP said that there is no restriction on the speech of the judge. “If that were the case, many judges would have missed the speech. The problem lies in the points raised in Shaukat Aziz Siddiqui’s speech.”

He asked whether the court itself could investigate the matter. “Is Supreme Judicial Council case constitutionally reversible?”

In response to CJP Isa, Hamid Khan said that the case cannot be sent back to SJC. “Shaukat Aziz Siddiqui is retired and cannot be reinstated as a judge,” he said, adding that the court could no longer hear his case.

Earlier, during the hearing, Barrister Salahuddin said that the jurisdiction of the Supreme Judicial Council (SJC) was limited. “If the court wants, it can form a commission to probe the allegations levelled by the ex-judge Siddiqui,” he said.

The CJP asked under which law the SC could form a commission. “It is under article 184 (3) that the apex court can order an inquiry,” the barrister replied.

“Should we record the statements of witnesses and cross-examine them?” the chief justice questioned.

The barrister replied that the court could wield this power under Article 199.

The counsel went on to say that the SJC could not take action against a retired judge.

Justice Isa remarked that the only point, which was right now under the court’s scanner was why inquiry was not held into the former judge’s claims. “If you want your client to start receiving the pension again then we better dispose of the case,” he said, and asked, “Is your appeal related to a matter of public interest?”

“Do you think that independence of judiciary could be ensured by restoring the pension of an ex-judge?” the CJP questioned.

At the outset of the hearing, lawyer Haris came to the rostrum and informed the court who he was representing. He urged the court to conduct a “fair inquiry” of the matter, arguing that under Article 209(6) of the Constitution, the SJC could not present a report to the country’s president without conducting an inquiry.

When asked about the allegation against his client, Hamid Khan answered it pertained to a speech and urged the court to quash the decision against Siddiqui.

CJP Isa asked whether the ex-judge “admitted the allegations against him or rejected them”, to which the lawyer replied that his client had denied all allegations levelled against him. The top judge then noted that former SC registrar Arbab had submitted his response as well.

Hamid then asserted that the ex-registrar had said he had brought the matter to the notice of then-IHC chief justice Kasi, whose lawyer then came to the rostrum.

The chief justice then asked how the case should proceed ahead, to which Hamid said: “The submitted responses have made my case clear. The SJC had not conducted any inquiry. If there had been an inquiry, witnesses would have appeared [and] cross-examination would have been allowed.”

The counsel then requested that the order to remove the former judge be declared unlawful.

At this, the CJP observed that according to Attorney General of Pakistan (AGP) Mansoor Usman Awan, a factual inquiry had not been conducted, wondering how the five-member SC bench could then decide on the case.

“What would happen if it is not determined whether the allegations are false or true?” Justice Isa asked, noting that the claims were made in public. “Will the decision of the judge’s removal be maintained if the allegations are proven false?”

In response, Hamid said that the decision against his client should first be set aside and then a commission should be constituted to conduct an inquiry.

CJP Isa then asked if the matter could be referred back to the SJC, to which the ex-judge’s lawyer replied in the affirmative.

At this point during the hearing, Justice Mandokhail said, “Let’s assume that the allegations (made by Siddiqui) are true but was it appropriate for a judge to make such a statement? You have not denied making the speech.”

The CJP also wondered, “Is any judge allowed to make such a speech?”, at which Hamid acknowledged that the speech could not be denied.

Justice Mandokhail again wondered if Siddiqui’s conduct as a judge was “appropriate” while Justice Isa noted that a speech could be of “two kinds”.

“Is a judge not allowed to make a speech? I think we should not forget the fact. If the fact was making the speech, then half of the judiciary will have to go home,” the top judge remarked.

“It is not the question of mere making of the speech. It is the content of the speech,” he observed, adding that if allegations were made in the speech or a “vicious or loaded attack” was launched, the two elements could not be “disconnected”.

The CJP asked if the case could be remanded back to the SJC, to which Haris, Gen Hameed’s lawyer, replied in the negative. He said that Siddiqui had retired as a judge and could not be restored to the role, therefore, the SJC could no longer review the matter.

When Haris argued that the judge should not have made a public speech, the chief justice asked him what article of the SC’s code of conduct Siddiqui had allegedly violated and told him to read the code of conduct for judges.

“A judge should not get into public and political controversies,” Gen Hameed’s counsel asserted, insisting that the “judiciary was ridiculed in the speech”.

CJP Isa once again asked how the matter should proceed, at which Haris urged the court to take a suo motu notice. “The nation should also know whether the allegations are true or false. The institutions are for serving the public,” the top judge said.

At this point during the hearing, it emerged that the federal government challenged the Afiya Shehrbano Zia verdict, which held that judges who retire or resign do not fall within the ambit of Article 209 of the Constitution determining misconduct of superior court judges.

Here, AGP Awan urged the apex court to hear the appeal along with the current case.

Reporter Amanat Gishkori