ISLAMABAD: The Supreme Cou­rt on Wednesday rejected a request to stay Jan 11 Supreme Judicial Council (SJC) proceedings against Justice Sayyed Mazahar Ali Akbar Naqvi, as an SJC member Justice Ijazul Ahsan described the council’s proceedings against his colleague “contrary to the established norms”.

A three-member bench headed by Justice Aminuddin Khan and comprising Justice Jamal Khan Mando­khail and Justice Musarrat Hilali asked the petitioner judge to amend his petitions by incorporating the complainants before the SJC as respondents.

When senior counsel Makhdoom Ali Khan repeatedly requested the bench to at least stay the SJC proceedings, as was done in the cases of Iftikhar Muhammad Chaudhry and Justice Qazi Faez Isa, Justice Khan observed that the present proceedings were preliminary in nature.

The three-judge bench had taken up a set of petitions challenging the issuance of a show-cause notice to Justice Naqvi, who was facing complaints of misconduct before the SJC. The SJC, which is seized with a set of 10 different complaints against the judge, will resume its proceedings in the open court on Jan 11 (Thursday).

The court was hearing arguments for the last two days on a point that should the court allow the informer, who filed complaints before the SJC, to become a necessary party in the pe­­­titions, moved by the judge. “It is ne­­cessary to hear the other side so that nobody should be left unheard and that justice should also be seen to be done,” Justice Mandokhail observed.

Justice Ahsan describes proceedings against SC judge as ‘contrary to established norms’

Justice Mandokhail observed that the complaints before the SJC should be comprehensive so that no judge against whom the complaint had been filed could go scot-free. He added that the complainants should be punished in case allegations turned out to be baseless.

Makhdoom Ali Khan, however, ar­­gued that the Supreme Court under Article 184(3) has no right to punish anybody since proceedings under this provision were not adversarial.

He argued the informers have no right to expect their complaints shou­­ld always be inquired upon by SJC and if every complainant has to be he­­a­rd then this tendency would expose the judges and the judiciary since whenever denied the right or in case of any adverse order by the cou­rt, the aggrieved complainant will knock the doors of the Supreme Court.

The counsel also cited the recent meeting of SJC in which it decided to reject 19 different complaints against different judges without hearing the complaints.

Citing the cases of Iftikhar Muhammad Chaudhry and Shaukat Aziz Siddiqui, the counsel contended that the courts had held while deciding these matters that Article 209 under which proceedings against the judges were initiated on misconduct, was more concerned with the protection of judges than prosecuting them.

In his petition, Justice Naqvi had described the allegations levelled in the show-cause notice as false, baseless and not supported by evidence.

‘Hasty’ proceedings

On the other hand, Justice Ijazul Ahsan — part of the five-member council — who had refused to join other members of the council on Nov 22, 2023, in the issuance of the show-cause notice to Justice Naqvi, regretted the hasty proceedings.

In his letter to the SJC members, Justice Ahsan regretted that debate and discussion have been non-existent and have not been permitted during the ongoing council proceedings. “Thus Nov 22, 2023 proceedings when the second show-cause notice was issued against Justice Naqvi were completely devoid of any discussion or deliberation whatsoever,” he said.

This manner of proceedings has cast an unwelcome doubt over the whole process, therefore he disagreed with the process followed and the manner in which the proceedings were being conducted, Justice Ahsan explained.

Referring to the allegations in the complaint against the judge, the letter regretted these were utterly without merit or substance, both in law and even on a prima facie appraisal of the facts.

“Of these, allegations a few relate to the properties or transactions of properties of the sons of the respondent ju­­d­­­ge when the sons were lawyers in pr­­a­­ctice and persons of independent me­­ans.” The sons are effectively being condemned unheard, the letter regretted.

The thrust of the allegations is that the properties have been transacted at values supposedly far below their market value but not a shred of any credible evidence has been produced by the complainants in this regard.

“If the judge had been given an opportunity as suggested and the properties mentioned found to be declared in his tax returns, the matter of whether there had been any undervaluation as alleged would then be for the tax authorities to determine under the Income Tax Ordinance, 2001,” the letter said.

The letter regretted that a reasoned and deliberative approach ought to have been adopted which would have prevented the council from falling into the error that has now been committed with the issuance of the show-cause notice.

Published in Dawn, January 10th, 2024