In judicial first, ex-SC judge found guilty of misconduct

ISLAMABAD: The Supreme Judicial Council (SJC) Thursday recommended removal of former judge of the Supreme Court, Mazahar Ali Akbar Naqvi, after finding him guilty of misconduct.

The SJC, headed by Chief Justice Qazi Faez Isa, gave its reserved opinion on nine complaints filed against the former SC judge. “The SJC rendered its opinion in respect of the nine complaints against Sayyed Mazahar Ali Akbar Naqvi under Article 209(6) of the Constitution of Islamic Republic of Pakistan and opined that he was guilty of misconduct and should have been removed from the office of judge,” says a press release, issued by the council secretary. The council also sent its opinion to the president of Pakistan.

It was stated that the SJC considered six different complaints, in chronological order, and in respect of five, the opinions expressed by the members to whom it was referred, recommended that there was no substance therein, with which the SJC concurred.

The council, however, in respect of complaints submitted against a judge of the high court of Balochistan issued a notice to submit his reply/ explanation within 14 days.

Similarly, the SJC observed that allegations are levelled against judges of the Supreme Court and high courts and the same are publicised.

A number of judges have expressed concern that if they respond to such allegations, the same may be construed as misconduct because the Code of Conduct, dated September 2, 2009, issued by the SJC, in its Article-V, states that “a judge should not seek publicity”, the press release added.

It was further stated that the SJC deliberated upon the matter and was of the opinion that if a reply or clarification is issued by, or on behalf of a judge, it does not violate Article-V. However, since concerns have been expressed by judges, it was agreed that the following be added to Article-V of the Code of Conduct. “…if an allegation is publicised against a judge, he may respond to it”.

The council, therefore, amended Article-V of the Code of Conduct, which reads as: “Functioning as, he does in full view of the public, a Judge gets thereby all the publicity that is good for him. He should not seek more. In particular, he should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law. However, if an allegation is publicised against a judge, he may respond to it.”

On March 1, the SJC, after recording statements of witnesses in the complaints, filed against Mazahar Ali Akbar Naqvi, had reserved its opinion.

Other members of the council included Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Chief Justice Balochistan High Court Justice Naeem Akhtar Afghan and Chief Justice Lahore High Court Justice Amir Bhatti.

During the course of hearing, Chief Justice Qazi Faez Isa had said that a letter, written by Justice (retd) Mazahar Ali Akbar Naqvi, was received and according to the letter, he will not participate in the proceedings of the council.

Similarly, last paragraph of the letter written by Justice (retd) Mazahar Ali Akbar Naqvi on February 29 was also read out during the proceedings of the council.

CJP Qazi Faez Isa said the council gave Mazahar Naqvi an opportunity to cross-examine the witnesses several times, but he did not come. He further said that on the request of respondent judge, they conducted the proceedings of the council in the open court.

Some lawyers, including Mian Dawood Advocate as well as Pakistan Bar Council (PBC), had filed misconduct complaints against former judge of the Supreme Court Justice Mazahar Ali Akbar Naqvi.

The SJC had served notices upon the former judge but he had also filed a petition in the SC, challenging the complaints filed against him and terming it a direct and blatant attack on the independence of judiciary.

Later, during the pendency of complaints with the SJC, Justice Naqvi tendered his resignation and president of Pakistan accepted it as well.

His lawyers argued before the five-member bench of the SC, during the hearing of his petition, that the SJC could not proceed against a judge once he retired or tendered resignation as per the apex court judgment delivered in 2023 in Afia Shehrbano case.

Meanwhile, the federal government filed an intra-court appeal (ICA) under Section 5 of the Supreme Court (Practice and Procedure) Act 2023, read with Article 184(3) of the Constitution, against the judgment dated June 27, 2023 delivered in the Afia Shehrbano case.

The federal government had prayed to the apex court to set aside the impugned judgment after allowing the instant ICA.

It was also prayed to hold that a judge against whom proceedings are initiated under Article 209 of the Constitution ought to be proceeded against and his resignation would not result in abatement of such proceedings.

Later, on February 21, a five-member bench of the apex court, headed by Justice Aminuddin Khan, approved the ICA of the federal government and held that if the proceedings have already been initiated by the SJC against a judge, same shall not abate (halt) on his resignation or retirement, as the case may be, during such proceedings.

The court, by a majority 4-1 (Justice Hassan Azhar Rizvi dissenting) to the extent of appeal being time barred, announced the verdict after hearing to the amicus curies (friends of court).

The court had partially allowed the appeals of federal government, Afia Shehrbano Zia, Senator Farhatullah Babar, Afrasiab Khattak, Bushra Gohar and others.

The court, in a short order, had held that it was the prerogative of the SJC to proceed with the matter accordingly, adding that the impugned judgment was modified to that extent.