Supreme Court's second senior-most judge, Justice Ijazul Ahsan, has expressed concerns over the "haste" in which proceedings are being conducted against Justice Mazahar Ali Akbar Naqvi in the Supreme Judicial Council. He lamented that debate and discussion have not been allowed as show cause notices were issued over allegations which are "utterly without merit or substance".
In the undated letter, which surfaced on Tuesday — after Justice Naqvi's plea to halt the proceedings of the Judicial Commission was rejected earlier in the day, Justice Ahsan stated that he had refused to join other members of the council on November 22, 2023, when a second show cause notice was issued to Justice Naqvi.
In the four-page letter, Justice Ahsan commented on how proceedings against Justice Naqvi were being conducted.
"Unfortunately, in my opinion, the proceedings are being conducted in undue haste contrary to established norms," Justice Ahsan stated, adding that this is a body which must act with deliberate care and after "full, frank and detailed discussion".
"This approach has been entirely lacking in the present proceedings. Debate and discussion has been non-existent and has not been permitted," he stated, adding that in his view, deliberations and consultations take on greater significance when the council lacks unanimity in thought with a member disagreeing.
The proceedings of November 22, 2023, when the second notice was issued, were also completely devoid of any discussion or deliberation whatsoever," Justice Ahsan said of a hearing he was not a part of. "This manner of proceedings has cast an unwelcome doubt over the whole process."
"I, therefore, disagree with the process followed and the manner in which the proceedings are being conducted."
About the allegations against Justice Naqvi, Justice Ahsan offered his opinion that they are "utterly without merit or substance, both in law and/or (as the case may be) even on a prima facie appraisal of the facts, such as they are."
Justice Ahsan explained that most of the allegations against Justice Naqvi pertains to transactions for various properties. Two of the allegations, he added, relate to properties or transactions of properties by Justice Naqvi's sons. At the same time, a third allegation also implicates Justice Naqvi's son.
"The sons are lawyers in practice and are persons of independent means," he explained, adding, "They are effectively being condemned unheard."
"As a matter of law, these allegations are unsustainable and cannot be levelled against the judge."
For allegations about four properties or transactions of properties below market value by Justice Naqvi, Justice Ahsan stated that no evidence was provided to substantiate it.
"Everything is hearsay or worse."
He further noted that the proper course of action would have afforded the respondent judge a patient hearing, just as the complainants were heard over several hours. He stated that this approach was not adopted even though a member of the council had suggested it.
Justice Ahsan expressed the opinion that there is nothing, even prima facie, on the basis of which the council can proceed against Justice Naqvi.
"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."
Justice Ahsan further said that a charge of "evidence of corruption" has been put forward without any consideration.
"This approach would not even be acceptable if done by a prosecuting agency such as NAB, who would be (rightly) castigated for shoddy investigation and speculative conclusions, untethered in any material (even of a prima facie nature)."
Justice Ahsan stated he does not find it acceptable that the Judicial Council saw fit to issue a show cause notice to a sitting member of the Supreme Court on such a basis.
"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."
On the allegation that Justice Naqvi is "approachable", Justice Ahsan stated that the allegation was a "highly noxious claim that is based entirely on audio clips or judicial orders."
The law in respect of both is well settled, he stated.
"No judicial order can be the basis for proceedings under Article 209. This is settled beyond doubt," he said, adding that this was settled as recently as on October 27, 2023, when 20 complaints were dismissed as being based on judicial orders.
On the use of audio or video clips in any proceedings, Justice Ahsan stated that the law is equally well settled by more than one court judgment.
"The making of this allegation, and its inclusion in the show cause notice, are in clear violation of settled law."
Justice Ahsan concluded that the show cause notice issued to Justice Naqvi should never have been issued.
"It should be recalled forthwith."