ISLAMABAD: The Karachi Bar Association (KBA) has requested the Supreme Court to set aside the Oct 11, 2018 Supreme Judicial Council’s (SJC) opinion that led to issuance of a notification removing Islamabad High Court judge Shaukat Aziz Siddiqui the same day.

The KBA in its petition moved through senior counsel Rasheed A. Razvi also requested the apex court to order a transparent probe into the veracity of allegations levelled by the former IHC judge in his July 21, 2018 speech and in his replies submitted to the SJC.

The petition was filed a few days after a five-judge SC bench had on March 25 removed the registrar’s office objection and ordered fixing of Justice Siddiqui’s petition challenging the Oct 11, 2018 notification of his removal as a judge.

KBA seeks transparent probe into veracity of allegations levelled by Justice Siddiqui against executive organ of state

Justice 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 by delivering a speech on July 21, 2018 at the Rawalpindi District Bar Association, thus found guilty of misconduct.

In the speech, the former judge had made remarks against the involvement of certain officers of the executive organ of the state, specifically Inter-Services Intelligence (ISI), in the affairs of the judiciary to allegedly manipulate the formation of the benches of the high court.

The KBA in its petition named as respondents the federation through the law secretary, the SJC, the former judge himself, former IHC chief justice Anwar Khan Kasi and the ISI.

The petition argued that the allegations made by the then sitting high court judge about the manipulation of judicial proceedings by certain elements in intelligence agencies deserved proper factual inquiry. In particular, it added, such inquiry that should entail a full-fledged trial was imperative where the allegations were made in writing, specifically naming the high-ranking military officers of whom two were said to have personally visited the high court judge to allegedly seek cooperation in judicial matters.

The petition alleged that the SJC had brushed the real issue under the carpet by stating that it was not relevant whether the allegations were correct or not, but whether these should have been made publicly. “Indeed, the public interest in protecting and encouraging whistleblowers far outweighs the public interest in preserving the traditional judicial values of reserve and reticence. Moreover, the factual accuracy of the former judge’s allegations needed to be ascertained by SJC prior to assessing the propriety of making such allegations publicly and determining the appropriate and proportionate penalty for the same,” the petition emphasised.

It said that after having refused to enter into an inquiry regarding the correctness of the allegations and denying the judge the opportunity to prove the same, the SJC could not have, thereafter, faulted him for making unsubstantiated allegations.

The petition argued that the very purpose behind Article 209 of the Constitution was to ensure that the stream of justice was unsullied and public confidence in the judicial institution remained intact. But the manner the judge was removed from the office without bothering to hold a full-fledged inquiry had actually strengthened the perception that the intelligence agencies exercised great influence over the judiciary and destroyed public confidence in the judiciary, it contended.

In any event, irrespective of whether it was SJC’s duty to hold inquiry into such allegations or not, it was necessary for the Supreme Court to probe the same under Article 184 (3) and restore public confidence in the judiciary, the petition said.

Moreover, it added, the code of conduct for judges of the apex court and high courts provided general guidelines and a set of aspirations for the judges. But it was evident from the very language of this code that each and every infringement, especially a singular infringement, did not and could not constitute misconduct justifying removal within the meaning of Article 209, the petition stated.

“Article 209 requires that the removal of a judge be preceded by a finding of actual misconduct and mere unbecoming behaviour on part of a judge or his failure to meet traditional requirements of behaviour is not sufficient to constitute misconduct entailing removal within the meaning of Article 209,” the petition contended.

Indeed, by holding that the code of conduct was not exhaustive and the traditional requirements of behaviour expected of judges were to be determined by the SJC from case to case, the council had essentially deprived all superior court judges of their security of tenure and replaced it with service at the pleasure of the SJC, the petition bemoaned, adding that judges could not be truly independent unless they also enjoyed security of tenure and protection against the whims and fancies of their seniors.

“By preserving judicial comity and maintaining deference to seniors are, no doubt, desirable objectives but they must take second position to the object of ensuring judicial transparency and historical accuracy,” the petition argued.

It said the judges should not — in the name of judicial comity and deference — maintain an oath of silence about any misdeeds of their past and present colleagues. “The glory of majesty of any institution including the judiciary is only enhanced by being honest and forthcoming about past and present mistakes,” the petition said.

“There is nothing to be gained from glossing over judgements like Maulvi Tamizuddin and Dosso and the compromises made by judges in the past or from ignoring the historical reality that on several occasions in our history — men in uniform have successfully subjugated the judiciary,” the petition said, adding that one could not hope for a better future unless one was willing to face and tell the truth about one’s past and present and learn from those mistakes.

Published in Dawn, March 29th, 2019