ISLAMABAD: The Supreme Court on Thursday dropped hints that it would soon announce the much-awaited detailed reasoning behind the June 19 short order against the presidential reference against Justice Qazi Faez Isa.

A five-judge SC bench headed by Justice Umar Ata Bandial asked senior lawyer Hamid Khan to wait for the final judgement that would be announced soon. The court had taken up an appeal moved by a former outspoken judge of the Islamabad High Court, Shaukat Aziz Siddiqui, against the Oct 11, 2018 notification of his removal as a judge.

As the court commenced the hearing, Justice Bandial asked Mr Khan to convince the bench how to cross the hurdle of Article 211 of the Constitution that put a bar on challenging before any court the proceedings conducted by the Supreme Judicial Council (SJC) and its report to the president and the removal of the judge under Article 209(6) of the Constitution.

Justice Bandial said either the lawyer should convince the court on crossing the hurdle of Article 211 by establishing three grounds, as determined in the former chief justice Iftikhar Mohammad Chaudhry case that the sending of the reference and the SJC report to the president was based on mala fide in facts, coram non judice (not before any judge) and without any jurisdiction. Or Mr Khan could wait for the (detailed) judgement which was going to be announced soon, said Justice Bandial, who also headed the 10-judge SC full court which had heard the petition of Justice Isa, a sitting judge of the Supreme Court.

Court asks lawyer how hurdles can be crossed for challenging ex-IHC judge’s removal

Earlier, on Feb 13, the bench had told the lawyer that the points raised in the appeal by former judge Siddiqui overlapped and were similar to the points being highlighted by Justice Isa.

The 10-judge full court had announced a short order in June 19 in which it had quashed the presidential reference against Justice Isa over non-declaration of three offshore properties in the name of his wife and children.

Justice Bandial observed that the petitioner was challenging the SJC report to the president, which in the present scheme of things could not be challenged.

Though the bar of Article 211 was also considered in the Justice Isa case, this was the first case of its kind since in it, the report to the president by the SJC had been questioned, Justice Bandial observed.

The counsel had to explain why the Constitution did not provide an appeal or remedy against such a report, the judge said, adding that in fact the petitioner was asking for amending the Constitution. Justice Bandial highlighted that Pakistan was among a few such countries where parliament had no involvement in the process of removal of judges.

Hamid Khan, however, argued that Article 184(3) of the Constitution under which the petition was instituted provided wide powers to the Supreme Court to exercise its jurisdiction and was independent of the conditions mentioned in Article 199.

The court adjourned the hearing for one month.

Shaukat Aziz Siddiqui was removed from the high judicial office on the recommendation of the SJC under Article 209 of the Constitution for displaying a conduct unbecoming of a judge for delivering a speech on July 21, 2018 at the District Bar Association (DBA) in Rawalpindi.

In his appeal, the former judge has contended that the matter is of great public importance since important questions in relation to independence of judiciary, rule of law and supremacy of the Constitution have been raised, requiring an early adjudication of the matter by the apex court.

Mr Siddiqui has also requested the apex court to reinstate him as a permanent judge of the high court after setting aside the Oct 11, 2018 notification of removing him.

In the 30-page appeal, the former judge with a seven-year judicial experience explains the context in which he was compelled to address the Rawalpindi DBA in which he made remarks against the involvement of certain officers of the executive organ of the state, specifically the Inter-Services Intelligence, in the affairs of the judiciary and to allegedly manipulate the formation of the benches of the high court.

The remarks made by him were an honest attempt demanded by his conscience to counter the challenges posed to the independence of judiciary, he argues in his appeal.

It is obligatory upon the SJC to inquire into the allegations levelled by him in the interest of justice in a properly conducted trial to uphold the rule of law and independence of the judiciary, which are basic features of the Constitution, the petition argues.

Published in Dawn, September 25th, 2020