SC reserves verdict on ex-IHC judge Siddiqui's plea against dismissal

• Judge not prevented from speaking in code of conduct, CJP says.
• Justice Mandokhail questions Shaukat Siddiqui' procedure as judge.
• Five-member bench resumes hearing more than a month later.

ISLAMABAD: The Supreme Court on Tuesday reserved its verdict on former Islamabad High Court judge Shaukat Aziz Siddiqui's plea challenging his dismissal from the post.   

A five-member bench led by Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Hasan Azhar Rizvi and Justice Irfan Saadat Khan conducted proceedings on the plea.

After reserving the verdict, CJP Isa dictated order of the today’s proceedings in the open court.

The written verdict sought responses to questions raised during the court proceedings from parties in the case.

In the order, the SC also questioned if the SJC conducted an inquiry.

“If the inquiry was not done under the Constitution and law, what would be the result?” the order stated.

The court also mentioned the former judge’s date of retirement in the order, according to which he has already reached his age of superannuation on June 30, 2021.

In its order, the SC asked the following questions:

What relief can be given if Shaukat Siddiqui's appeal is approved?

Can the Supreme Court refer the matter back to the Supreme Judicial Council?

Is the judge's speech itself not against the code of conduct if council action is not required?”

The court asked the parties to submit their answers to the aforementioned questions within three weeks.

“If deemed necessary, further judicial action can be taken by the Supreme Court,” it stated.

Hearing

During the case hearing, CJP Isa said the problem is not the speech but its text in the case pertaining to the dismissal of former judge Siddiqui by the Supreme Judicial Council.

The chief justice remarked that if a judge is removed for giving a speech, then half of the judiciary will go home.

"Many judges give speeches in bar council meetings. The problem is not the speech but the text of the speech," he remarked.

"A judge's code of conduct does not prevent him from speaking. The problem is when you make demands in your speech," CJP added.

These remarks by the country's top judge came during the resumption of the hearing of the ex-judge's plea challenging his dismissal.

The proceedings were broadcast live on the apex court's website as well as on its YouTube channel.

Lawyer Hamid Khan is representing the former IHC judge in the case, while Khawaja Haris is the lawyer of former director general of Inter-Services Intelligence (ISI) Lieutenant General (retd) Faiz Hamid and Brigadier (retd) Irfan Ramay.

The case was fixed for hearing earlier this month after the judge filed a miscellaneous application with the Supreme Court to conduct an early hearing of his plea against the decision by the Supreme Judicial Council (SJC) on his dismissal.

The chief justice said that judges also give interviews in Britain and participate in debates in the United States.

"The eyes of the entire nation are on us. Here is the question of respecting the constitutional institutions," the chief justice stated, questioning what order should be issued by the bench in such circumstances.

Justice Mandokhail questioned if it was appropriate for a judge to have levelled the allegations in the way that Siddiqui did.

"We should not forget the facts," the CJP responded.

Justice Mandokhail asked: "If the allegations are true, was Shaukat Siddiqui's procedure as a judge appropriate?"

The chief justice said there is no restriction on the judge's speech. "If this were the case, many judges would have missed the speech. The problem is the points raised in the speech of Shaukat Aziz Siddiqui."

He asked if the court could investigate the matter itself. "Can the Supreme Judicial Council case be constitutionally remanded?"

Responding to CJP Isa, Gen (retd) Hamid and Ramay's lawyer said the case cannot be sent back to the SJC.

"Shaukat Aziz Siddiqui is retired and cannot be reinstated as a judge," he said, adding that the SJC can no longer look into his case.

At the onset of the hearing, CJP Isa asked Lt Gen (retd) Faiz and Brig (retd) Ramay’s lawyer if they accept the allegations levelled against them, responding to which Haris said his clients refutes them.

The CJP said that the former SC registrar has submitted a reply in the case. Meanwhile, Attorney General for Pakistan Mansoor Usman Awan was representing the federation and former IHC chief justice Anwar Kasi was being represented by lawyer Waseem Sajjad.

Siddiqui’s lawyer contested that the SJC should have conducted a probe into the matter since Lt Gen (retd) Faiz is refuting all allegations levelled by his client.

“The Supreme Judicial Council should have conducted an inquiry first, this is our case. In the inquiry, we would have had the opportunity to cross-examine him,” he said.

Before the AGP, the additional attorney general for Pakistan was present in court and was asked by the CJP if an inquiry was conducted.

“When Shaukat Siddiqui accepted [the content of] the speech, no inquiry was conducted.”

The chief justice sought recommendations on the case after the additional AGP mentioned that the facts were not investigated.

“Declare the Supreme Judicial Council’s action illegal,” Siddiqui’s lawyer, Khan, said, demanding that a judicial commission be formed to probe into his client’s speech.

“How and under which law should the Supreme Court order the creation of a commission?” the CJP asked the counsel.

He also questioned what will happen if Siddiqui's allegations are not true. “What should be done to find out who is true and who isn’t?”

CJP Isa remarked that the proceedings of the Supreme Judicial Council should be in accordance with the law. “The requirements were not fulfilled in the action of the council. How can the Supreme Court give a decision in these circumstances?”

AGP also said that the lack of investigation of Siddiqui's allegations is wrong. He added that action should also be taken against the judge if the allegations are false.

“The decision of the Afiya Sheharbano Zia case of not taking action after the retirement of the judges has been challenged,” the AGP said.

He added that Siddiqui can be declared retired instead of dismissed if decision on Afiya Zia case is upheld.

“The Supreme Court has full authority to decide the Shaukat Aziz Siddiqui case.”

CJP remarked that a full inquiry has not been conducted in the matter, which the parties have also acknowledged.

“The removal of Shaukat Aziz Siddiqui without an inquiry is against the established legal requirements,” the AGP said.

He added that the matter can go to the council if the decision of Afiya Sheharbano case is annulled.

“A judge cannot be removed without an inquiry, it is a matter of fundamental right,” AGP stated.

In the last hearing of the case, held on December 14 last year, the apex court ordered former judge Siddiqui to nominate the ex-spy chief and others in the plea against his dismissal.

IHC judge removal

It must be noted that the former judge was removed from his position in the IHC for his speech targeting intelligence agencies when he was addressing the Rawalpindi Bar Association on July 21, 2018.

In his address, the ex-judge accused sensitive institutions of interfering in judicial work.

Multiple references were subsequently filed against him which included extra expenses on government residence, two related references against him passing remarks during hearing of the Faizabad sit-in case in 2017, another seeking his dismissal and one taken up by the SJC following on a complaint filed against him in the wake of the speeches.

He was eventually dismissed from the post on October 11, 2018, after the SJC decided to dismiss him.

The judge then challenged his dismissal by the SJC in 2018 and his case has been ongoing ever since with the last hearing on the constitutional petition held on June 13, 2022.

Siddiqui, in his petition, requested to cancel the dismissal notification issued against him as an IHC judge.

The judge is being represented by senior lawyer Hamid Khan, while parties in the petition include the Islamabad Bar Association and Karachi Bar Association.