Fitting repair —lawyers hail SC ruling

KARACHI: Calling the Supreme Court verdict regarding Justice Shaukat Siddiqui’s dismissal a “fitting repair”, legal experts say that the SC’s Friday verdict goes a long way in ensuring due process and judicial independence in the removal and trial of future judges on the grounds of misconduct.

On Friday, a five-member bench of the Supreme Court in a 23-page judgment declared that former Islamabad High Court (IHC) Justice Shaukat Aziz Siddiqui’s removal in 2018 was illegal. For context, the SJC had moved against the judge over a controversial speech made by Siddiqui before the District Bar Association, Rawalpindi on July 21, 2018.

The Supreme Court verdict in Justice Siddiqui’s case has been a long time coming per legal observers who had back in 2018 too pointed to the controversial way the judge had been dismissed. Supreme Court advocate Basil Nabi Malik calls Justice Shaukat Siddiqui’s removal “clearly mired in controversy” and “questionable to many” given the swiftness with which it took place. The case, says Malik, also raised “quite a few questions about the independence of the judiciary and the security of tenure of judges”.

Now, with the SC verdict terming Justice Siddiqui’s removal illegal, lawyer Abdul Moiz Jaferii says that the “SJC proceedings against the judge and the complaints against him, as well as those that complained, have all been exposed as extremely wanting of basic due process.”

Basil Malik says that the judgment notes the speed with which the proceedings took place, the lack of inquiry or investigation that was undertaken, and the swiftness of the conclusion while also mentioning “the effect of such proceedings on the independence of the judiciary itself.”

A quick review of the Supreme Court verdict would be that it is a “fitting repair to a very hastily and shoddily stitched together hatchet job”, says Jaferii, who explains that while this may be too little too late it does “go a long way in ensuring due process and judicial independence with regard to the removal and trial of future judges on the grounds of misconduct.”

According to constitutional expert Hafiz Ahsaan Ahmad Khokhar, while Article 209 of the constitution permits the commencement of proceedings to remove a judge, Articles 209(5) and 209(6) impose obligations on the Supreme Judicial Council (SJC) to hold a proper inquiry regarding whether a judge is guilty of misconduct. Since this had not been done in the present case, the Supreme Court correctly and legally held that Justice Siddiqui was not treated in accordance with the law.

In fact, per Jaferii, the judge was dismissed without proper inquiry or process and turned into a hero through his ordeal. Justice Siddiqii had several references pending in the SJC. Jaferii says some were linked to alleged bigotry, others alleged misuse of public funds and “If those allegations had been taken to their logical conclusion, he may have been removed as a judge on those counts in a justified manner. Instead, he was removed for telling what he believed to be the truth, by a bunch of judges acting in collusion with and perhaps even at the behest of those considered too holy to be alleged against whilst in office.

The judge has now, after the SC ruling, also been given a more honourable end to his career. As a result of the current ruling, according to Hafiz Ahsaan Khokhar, Justice Siddiqui will be “deemed to have retired as a judge of the Islamabad High Court and will be eligible to receive all benefits and privileges accorded to a retired judge.”

The SJC has been in the news for some time now, whether one case or the other. How do lawyers see its functioning in light of the recent verdict? Jaferii says that it is “the arbitrariness of the SJC” that has been glaringly in the limelight in recent times. He feels it is this that needs the most change and “the process of complaint against a judge and the adjudication of that complaint in a fair, timely and transparent manner is of fundamental importance. It cannot be considered good enough to stand where we are today. Judicial internal accountability through transparency is a must.”

On the SJC, Malik feels that “there has always been a debate about whether judges can be trusted to hold themselves accountable, and I reckon such a debate shall continue for the foreseeable future. However, the recent instances of judicial oversight of SJC proceedings appear to stem from the fundamental problem of institutional overreach as opposed to questions revolving around self-accountability. And unless that question is addressed, the latter one shall remain merely a secondary concern in protecting the independence of the judiciary.”

The SJC is mandated to conduct an inquiry before determining whether a judge is guilty of misconduct and the removal of a judge from office without first conducting an inquiry would be illegal, as held by the Supreme Court. This is laid down in clauses (5) and (6) of Article 209 of the constitution.

Khokhar explains that a judge’s tenure is guaranteed by the constitution “because it creates an independent judiciary and allows for the removal of judges who engage in misconduct after giving them a fair trial and due process -- which, in this case, the constitution’s Article 10A requires, but this is not what happened in this particular case.”

In previous cases of removal by the SJC -- Judges Akhlaque Hussain, Justice Shaukat Ali, and Justice Mazahar Ali Akbar Naqvi -- “proper inquiry and recording of evidence” was ensured, says Khokhar, but not so in the case of Justice Siddiqui.

What the SC judgment does is answer the “many questions the SJC proceedings raised”, concludes Basil Nabi Malik, adding that it is probably “not lost on anyone that this judgment was based fundamentally on natural and procedural justice considerations, and the burning question of whether his statements were correct or not, and whether there was institutional interference in the work of the judiciary, remains unanswered and uninvestigated.