Removal of judges: right to fair trial | Pakistan Today

Removal of judges: right to fair trial

Did the case of Shaukat Siddiqui meet the standards of justice?

The Supreme Court admitted for hearing the petition of Mr Justice Shaukat Aziz Siddiqui, former Judge, Islamabad High Court, who had challenged his removal by the Supreme Judicial Council (SJC). It is somewhat unprecedented because of the prohibition, imposed by Art 211 of the Constitution, which debars the jurisdiction of “any court” in the matter. Further, the Karachi Bar Council has decided to become a party to the case and deputed two of its eminent members to argue the matter. This is a critique of the verdict of the SJC to examine whether the requirements of fair trial and due process were met?

Mr Justice Siddiqui was a vocal critic of the government and establishment, often making remarks against them for exceeding authority and committing excesses, which came to light during the hearing of cases. Such criticism was not well received. As a judge, he possessed some unique qualities, to wit, always coming prepared to court and giving prompt relief to the victim of abuse. He could stand pressure from the high and mighty, and reprimanded lawyers for coming unprepared, spurning their demands for strikes or requests for undue adjournments. Certainly, he was not amongst the special breed of judges who only “speak through their judgments”. Giving a media-savvy appearance, he often expressed himself during hearings, and had the knack to drag religion into sociopolitical matters, which attracted public rebuke/criticism.

The opinion has serious implications: as precedent, it can be abused to target and scapegoat honest and upright judges for their remarks in conferences, bar functions and while hearing cases

He was not a judge without flaw; but, with profound respect for the SJC, the manner in which issues were framed and proceedings conducted, leave a lot to be desired! A plain reading of the inquiry report, issued by the SJC, brings forth serious lapses or flaws in trial. It is a narration of a one-sided version and a damning account of conduct of the respondent, Mr Justice Siddiqui. It is devoid of minimum safeguards of fair trial and due process, guaranteed by the Constitution and statutory or case law.

Mr Justice Siddiqui was charged for an address to the bar: alleging interference by the ISI in judicial proceedings, castigating former chief justices for rendering questionable verdicts in return for inducements and manipulation of the media, and its capitulation, in taking directions from the ISPR. He held the judiciary, the armed forces, the bureaucracy and politicians, responsible for the state of fear and oppression in the country. The statement was uncharacteristic of a judge, going way beyond the settled judicial norms or propriety. The speech received wide coverage and attracted the displeasure of the SJC, hence he was chargesheeted for “maligning the judiciary and other institutions”.

In reply, he affirmed his stance and named the ISI operators who interacted with him, and quoted a former chief justice and President as conceding that extraneous influences were brought to bear upon the judiciary. He clarified that his intent was not to malign anyone, but to expose the intelligence agency’s interference in judicial matters.

During the hearing, the charge was endorsed by the Attorney General, who acted as Prosecutor. It was a serious matter, warranting a thorough probe to establish the veracity and authenticity of allegations, more so because at stake was the honour, integrity and conduct of a judge. Alas, this was not done! The SJC turned down the plea for inquiry by saying, “the issue before it was not as to whether the allegations levelled by Justice Siddiqui … were correct or not but…whether a senior serving Judge of a High Court ought to have levelled such allegations at a public forum…” It is a strange logic, which had the effect of denying to probe the known ISI officials and the revelations made by a former Chief Justice and President. It caused serious injustice to the respondent, whose main plank of defence was in revealing the truth. He had presented enough material or proof in support of his contention, which required a thorough probe. Refusal by the SJC was tantamount to quashing defence; indeed, denial of the principle of audi alteram partem (hear the other side).

The Council justified its stance on the premise of Supreme Judicial Council Procedure, which empowers “the Council to have inherent powers to adopt any procedure specific to the enquiry which is considered by the Council to be just and proper in the circumstances”. Quite obviously, the Procedure is framed under Art 209 of the Constitution and has no overriding effect. Further, the “inherent powers” are clearly qualified by the expression “to be just and proper” in the circumstances. The SJC is indeed the only forum for a judge to exonerate himself. It is not a court and there is no right of appeal or review, hence the procedure adopted must be such as to fulfil the criterion of being “just and proper” in the given scenario.  The judgments quoted in the opinion, and many more, lay stress on the right to “due process” and “fair trial”, the denial of which renders the status of a superior court judge worse than a civil judge or a clerk, who have multiple rights against an adverse order, including representation before Competent Authority and appeals to their Service Tribunal and the Supreme Court.

Denying inquiry, the proceedings gave the appearance of fulfilling a formality, that of examining the allegations, detached from context and ground realities. The touchstone fixed by the SJC was the requisite traits and characteristics in a judge, according to the Code of Conduct for Judges of superior courts. In the end, the charges were found correct without probe or inquiry, even though they may have been based on mere hearsay or speculative evidence, personal or private views, conjectures and without independent confirmation. The respondent was therefore found guilty of misconduct, hence recommended for removal. In the process, the respondent is deprecated for meeting military officers, making derogatory remarks against chief justices and their verdicts like the Molvi Tamizuddin case, the Dosso case, ZA Bhutto’s murder trial, Zafar Ali Shah case, and so on. There is no discussion of the admission of the former Chief Justice and President to the effect that extraneous influences were exerted to manipulate the judiciary.

The respondent had alleged bias by the then Chief Justice/Chairman, SJC, who had rejected his accusations in a statement. The plea was however dismissed by the CJP, saying it was needed to dispel speculations that judiciary is under siege. Ordinarily, this clarification could have sufficed to contradict the respondent and dispel the impression created by his diatribe; thus, no further action was called for. Better still, inquiry could have been ordered to probe the allegations, as had been requested by the respondent. Alternatively, silence could have been maintained for the sake of appearances. Anyhow, even if biased, the exclusion of the Chief Justice from the SJC cannot be countenanced according to Article 209 of the Constitution. However, the then Senior Puisne Judge could– perhaps should– have recused himself, as the former Chief Justice to whom remarks were attributed, was his relative. It was permissible under the said Article, but he chose not to, and authored the Opinion. Again, the speed with which the Reference was concluded (two months or so) raised quite a few eyebrows. Equally perturbing was the priority accorded to this bottom-of-the-list lis, when more serious matters of corruption were pending. Also perplexing was the speed with which the opinion was processed through the executive bodies and notification of removal issued on the day the verdict was signed.

The opinion has serious implications: as precedent, it can be abused to target and scapegoat honest and upright judges for their remarks in conferences, bar functions and while hearing cases. Day in, day out, judges attend such moots and speak on the bench, which gets reported and at times makes headlines. Denied the right to fair trial, where would the saint in the citadel of justice go for relief?

The writer practices law at Islamabad and served as Registrar, Supreme Court of Pakistan, Secretary, Law & Justice Commission and Director General, Federal Judicial Academy.



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