Judgment against Musharraf: Judges aren’t arraigned at any forum for their verdicts

ISLAMABAD: Some 22 months back, the Supreme Judicial Council (SJC) discharged a show-cause notice issued to a senior judge of the Lahore High Court (LHC), Justice Sayyed Mazahar Ali Akbar Naqvi, which was based on one of his judgments.

Top official legal brains announced on the day of the pronouncement of the judgement by the special court against Gen (R) Pervez Musharraf that a reference would be moved in the SJC by the government against the tribunal’s president, Peshawar High Court Chief Justice Waqar Ahmad Seth. However, there has been no meaningful movement forward on it with reports pouring in that the government is in two minds about its declaration. Attorney General Anwar Mansoor Khan has made public that the special court’s judgement would be contested in the Supreme Court on merit.

Federal Law Minister Dr Farogh Naseem has said that he has no instructions [from the government] not to file the reference against Justice Seth in the SJC. “We have a heavy workload.” Legal experts argue that no judge can be tried in the SJC or at any other forum in connection with any of his judgement and cite the outcome of the reference against Justice Naqvi to back up their opinion.

The SJC, a constitutional forum which examines conduct of erring superior court judges and recommends their removal, had taken up the reference against Justice Naqvi and issued show-cause notice to him on April 19, 2016, for alleged misconduct.

The reference was initiated on the basis of a January 2014 judgement of the Supreme Court which had taken a strong exception to the way Justice Naqvi had entertained a bail application of an accused. The apex court had described it as colourable exercise of jurisdiction.

Justice Naqvi’s decision to grant bail to an accused after rejecting his two previous similar pleas became the reason for the 2014 judgement of the Supreme Court, which had then also developed guidelines to be followed by all the high court judges and magistrates while granting bail in criminal cases. These principles were enunciated by Justice Asif Saeed Khosa in the judgement while deciding two review petitions, one of them moved by the judge facing reference before SJC.

However on June 2, Justice Khosa recused himself from hearing the reference against Justice Naqvi in the SJC, citing personal reasons but also emphasising that he had no personal bias against him.

Then defending Justice Naqvi, senior counsel Khawaja Haris Ahmed had raised objection to Justice Khosa’s presence in the SJC. Justice Naqvi had also moved a petition before the Supreme Court under Article 184(3) challenging the show-cause notice issued to him by the SJC. The plea had requested the court to declare the notice and all acts leading to its issuance unlawful, unconstitutional, without jurisdiction, contrary to public interest and violation of Articles 209(5) (SJC), 9 (security of person), 10A (fair trial), 19 (freedom of speech) and 25 (equality of citizens). However, later the judge had withdrawn the petition on the grounds that he had also raised objection before SJC, therefore, there was no need of a parallel hearing

When the SJC dropped the charge against Justice Naqvi in Feb, 2018, it was headed by the then chief justice, Mian Saqib Nisar. At the time, the judgements authored by Justice Naqvi had been compiled, certified and submitted before the SJC.

This was a rare reference that was finally quashed. Superior court judges are arraigned in the SJC on charges of misconduct under Article 209 other than their verdicts. The initiation of proceedings against Justice Naqvi were thus very rare.

Recently, Justice Farrukh Irfan Khan of the LHC was tried by the SJC for having two undeclared offshore companies that surfaced in the Panama Papers leaks. He disputed the allegation for some time but quit after sensing that the SJC was going to hand a decision against him. Consequently, the reference stood fructuous. If any judge, facing such proceedings, resigns, he is eligible to get his pension and other post-retirement benefits. No verdict of the judge was agitated in the SJC.

Justice Shaukat Aziz Siddiqui of the Islamabad High Court (IHC) was also arraigned by the SJC for his speech to the Rawalpindi district bar association. He contested the charge till the last moment. Ultimately, he was expelled from the judiciary as he opts to not resign. None of his judgement was the basis of the reference.

The Supreme Court Judge, Justice Qazi Faez Isa, too is facing proceedings in the SJC, which have been halted by the apex court pending the disposal of his challenge to the hearings. It is not any of his judgement that has become the basis of the presidential reference in the SJC, but the allegation that he denies is that he did not declare the offshore properties of his wife and children. A ten-member bench is hearing his petition against the SJC proceedings against him.