The Supreme Court (SC) on Tuesday reserved its verdict on a petition filed by former Islamabad High Court senior puisne judge Shaukat Aziz Siddiqui against his removal.

A five-member bench — led by Chief Justice of Pakistan (CJP) Qazi Faez Isa and including Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Hasan Azhar Rizvi, and Justice Irfan Saadat — heard the plea. The proceedings were broadcast live on the apex court’s website.

In his petition, the former judge had challenged a decision of the Supreme Judicial Council (SJC) 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.

In his speech, Justice Siddiqui had accused the Inter-Services Intelligence (ISI) of influencing the court proceedings and forming benches of choice.

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.

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

Siddiqui had nominated seven individuals in his amended plea, however, the court remarked that three others — former chief of army staff Qamar Javed Bajwa, and two retired brigadiers Faisal Marwat and Tahir Wafai — had no direct connection with the case.

During the hearing today, CJP Isa said the court could not punish anyone without conducting an inquiry. “The SC has to draw a line on the difference between the Supreme Court and the Supreme Judicial Council,” he observed.

“If removing a judge is so easy, then this is a threat to the independence of the judiciary,” the top judge further noted, adding that the current matter was public and people had a right to know the truth.

The hearing

During the hearing, Khawaja Haris appeared as Gen Hameed’s and brigadier Ramay’s counsel while Wasim Sajjad was present as Justice Kasi’s lawyer. Hamid Khan appeared as the petitioner’s counsel.

At the outset, Haris came to the rostrum and informed the court who he was representing. Siddiqui’s lawyer 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 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, 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 chief justice also wondered, “Is any judge allowed to make such a speech?”

To this, 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”.

“Making a speech is your right, anybody’s right,” CJP Isa stated, before giving examples of judges in Britain giving interviews to the media and those in the United States participating in debates.

The chief justice 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.

“If the SJC’s recommendation is set aside, then the allegations would be deemed true,” Justice Isa remarked. Haris then contended that “no allegation” was made against Gen Hameed either during the speech or before the SJC.

The lawyer further said that the SJC had noted that the former judge had “dishonoured the judiciary”. To this, CJP Isa wondered, “Where did the matter of dishonouring the judiciary come from?”

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”.

“The speech could also be seen as an indicator, instead of for publicity,” the top judge remarked. When asked what should a judge do in case there was corruption in an institution, the lawyer said they should inform the CJP.

At this, Justice Isa said that there should be “some criteria for accepting a chief justice’s statement and for not accepting another’s”.

“The nation has endured enough now. Our concern is related to the institution’s reputation. The nation should know the truth,” the chief justice remarked.

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. He hoped that the number would be allotted to the appeal in a day or two, contending that a judge could not be removed without an inquiry as the matter was linked to fundamental rights.

Meanwhile, Hamid said the case was “one of its kind” where a judge was removed without an inquiry. He added that a detailed judgment should be issued explaining why an inquiry was essential before the removal of a judge.

He further contended that a judge could not be removed without a presidential reference as per the 1956 and 1962 Constitution. “This was the condition in the 1973 Constitution as well,” the lawyer stated, adding that a procedure other than a presidential reference was introduced in the Constitution for the first time in 2005.

Justice Rizvi wondered if there was a need for inquiry when a judge’s speech was clear and available. “There are also allegations of corruption on Shaukat Aziz Siddiqui,” he said.

Hamid, however, maintained that inquiry in Siddiqui’s case was required.

“Who prepared the complaint against Shaukat Siddiqui? Did the registrar prepare everything and send it to the council himself?” Justice Mandokhail asked. “In what capacity can the registrar write a note to the council against the Judge?”

Justice Rizvi highlighted that the SC had taken notice of the case. He then went on to ask if an inquiry was required if the SJC had taken a suo motu notice.

“But how did the council initiate an inquiry itself? Show us the registrar office’s note,” CJP Isa said.

Separately, Justice Mandhokhail asked how the secretary “can be the council”, but the top judge stated that it was possible as the SJC might have issued instructions to the secretary.

For his part, Hamid said the case was fixed for hearing only once during which the ex-judge was called. Justice Saadat also stated that the record showed Siddiqui was not given a chance to present his stance. “The inquiry was underway for two months and his responses were reviewed,” the judge said.

Justice Mandokhail pointed out that the former IHC judge was not accused of saying anything right or wrong, but was accused of defaming the judiciary in public. “You [Siddiqui] did not deny [making] the speech,” he further highlighted.

In his response, Hamid contended that when Siddiqui’s case was brought up, the SJC was conducting an inquiry against former chief justice of the IHC Anwar Khan Kasi. The lawyer further claimed that Kasi was acquitted after he rejected Siddiqui’s allegations.

“Hamid Khan saheb, we cannot raise fingers on the SJC like this,” CJP Isa remarked. “The Supreme Court is not a watchdog of the SJC,” he said, adding that the balance created by lawmakers needed to be maintained.

“The Supreme Judicial Council is a strong constitutional body,” the chief justice further observed. Referring to Article 210 of the Constitution, Justice Isa added that the SJC had “broad constitutional powers” and every such body had the right to make independent decisions.

“The Supreme Court is not the guardian of any constitutional body including the Supreme Judicial Council, and can act only in the case of a constitutional violation,” the CJP said. “We have to be very careful in the present case to prevent disturbance in the balance between institutions.”

He added that a decision in Siddiqui’s case could be used as a judicial precedent for the next 50 years.

Subsequently, Sindh Bar Council lawyer Salahuddin Ahmed started presenting his arguments via video link. He said the judge in question had now resigned to which the CJP asked: “So will he have to suffer the consequences?”

“If you are talking about just one judge, then that means your application is not admissible,” Justice Isa said. On the other hand, Justice Mandokhail asked how could the court end the entire proceedings without any inquiry.

For his part, Salahuddin sought the constitution of a commission for the inquiry. However, the chief justice asked how the SC had the authority to form a commission. “The Supreme Court can constitute a commission in the public interest,” the lawyer replied.

According to the Pakistan Commission of Inquiry Act, only the federal government can form such a body, Justice Isa highlighted.

Justice Mandhokhail asked what would happen if the inquiry commission found Siddiqui’s allegations to be incorrect. “Will the annulled decision of the Supreme Judicial Council be reinstated?” he asked.

Barrister Salahuddin said that in such an instance, criminal proceedings could be initiated against the former judge. “How are criminal proceedings against a judge possible without the SJC?” Justice Mandokhail inquired, to which the lawyer said judges were not above the law.

“Will decisions on the fate of judges be taken by SHOs (station house officers)?” CJP Isa asked. He then said that it would be better if Salahuddin presented his arguments in a written document.

The lawyer reiterated that the court could form a commission under Article 184(3), adding that the SJC’s jurisdiction was limited. However, Justice Isa said the bench was examining only one point: why an inquiry was not held. “We are correcting the old course,” the CJP added.

“The question is whether what the judge said is right or not. This is a question of ridiculing the institutions,” the remarked.

Subsequently, Justice Isa narrated the order of the day and reserved the verdict on four questions in the case: What would be the result if the inquiry against Siddiqui was not conducted as per the law and Constitution; can the ex-judge be given relief if his appeal is approved given that he turned 62 in June; can the SC send a matter back to the SJC; whether Siddiqui’s speech was in violation of the code of conduct.

Justice Isa said the case could be fixed for hearing again if the need arose and directed all the counsels to submit their written responses.