In a surprising move, Supreme Court's Justice Sayyed Mazahar Ali Akbar has decided to go on the offensive against the Supreme Judicial Council (SJC), which had issued him a notice while hearing references of misconduct and corruption filed against him. He even raised objections against the Supreme Judicial Council's (SJC) Chairman, Chief Justice of Pakistan (CJP) Qazi Faez Isa, on the grounds of bias.
Justice Naqvi has also raised objections on two other members of the SJC, including senior puisne judge Justice Sardar Tariq Masood and Balochistan High Court's (BHC) Chief Justice Naeem Akhtar Afghan, seeking the recusal of these three named members.
He said this in an 18-page, written preliminary note filed in response to the show cause notice issued to him by the Supreme Judicial Council in October.
The three judges named are members of the SJC and are hearing complaints of alleged misconduct and corrupt practices against Justice Naqvi.
"In the interest of propriety, justice and fairness, Chief Justice Qazi Faez Isa and Justice Naeem Akhtar Afghan ought not to hear the complaints against me. Their participation in the proceedings resulting in a show cause notice being issued to me taints those proceedings, inter alia, with bias and makes all orders passed in such proceedings as being without lawful authority and of no legal effect," Justice Naqvi stated.
However, Justice Naqvi insisted that his submission was only a preliminary response and not a formal reply to the show cause notice issued to him. He added that it was an attempt to identify the issues involved, the information and documents that he requires to prepare and submit a response.
"It is with the above in mind that I state as follows, which I reiterate is not and must not be deemed to be a response to the notice on jurisdiction, maintainability or merits."
Explaining the grounds for his objections, Justice Naqvi stated that the SJC could only proceed against a judge by a unanimous decision instead of a majority decision.
"It cannot proceed by a majority. No such authority is vested in the SJC by the Constitution. Such authority allegedly conferred through the Supreme Judicial Council Procedure of Enquiry 2005 (“Rules”) is ultra vires the Constitution," he claimed.
Justice Naqvi further contended that the rules are illegal, "no authority has been given to the SJC by the Constitution to make rules for regulating its procedure. Any court, authority or a body established under the Constitution can only make rules for regulating its procedure when it is authorised by the Constitution."
"It is evident from Article 209 of the Constitution that no authority is vested in the SJC to make rules for regulating its procedure," he argued.
He further suggested that there was duplicity in the procedures adopted against him versus those for other judges facing references.
"A completely different procedure was followed in my case before issuing the SCN without any reason stated for this difference in treatment. Justice Sardar Tariq Masood, an Honourable Member of the Council, in my case, is the judge against whom allegations of misconduct have been made by Amna Malik. As a member of the majority of the Council, he has denied to me what he has received and benefited from as a judge against whom misconduct has been alleged. He has also, as a member of the majority, not proceeded to examine the veracity of the complaints or discussed these during the meeting, although in his own case, the same has been done. Two of the members of the three members in the majority, namely the Chief Justice of Pakistan and Justice Naeem Akhtar Afghan, who were also hearing the complaint against Justice Tariq Masood, have not recorded any reasons at all for following two different courses of action in the complaints against me and that in the case of Justice Tariq Masood. The proceedings against me have been conducted in a manner which is ex facie discriminatory, and these, therefore, violate Article 25 of the Constitution."
He contended that there was no discussion or enquiry into the allegations against him, and no information was sought from him or any other quarter to verify the allegations before the show cause notice was issued.
"Unlike in the case against the Sr. Puisne Judge (Justice Sardar Tariq Masood), no information was even sought from the complainants. They were not required to be present on the next date. It was not observed that any information they want to bring forward may also be supplied to me (Justice Naqvi)."
"The opportunity and the right given to the learned Sr. Puisne Judge Justice Sardar Tariq Masood to be present and to controvert the allegations before a show cause notice was issued or proceedings terminated was denied to me (Justice Naqvi)," the preliminary reply stated.
"There is also nothing on the record to suggest that there was any discussion or enquiry into the information received before issuing the SCN as required by the Rules."
He further contended that there was nothing on the record to suggest that any information was placed before the Council, or if it was discussed or that a decision to issue the SCN was reached based on any such discussion.
"The record is again completely silent about any discussion having taken place in the SJC about any further enquiry to be conducted or granting a right of hearing to me before issuing the SCN. As stated above, the course followed in my case is at complete variance with that followed in the case of Sr. Puisne Judge Justice Sardar Tariq Masood."
Addressing the ten complaints pending against him, Justice Naqvi stated that they contain multiple false and frivolous allegations without evidence.
"The SCN fails to identify the allegation(s) in those complaints which I am required to answer. It also does not specify the relevant provisions of the Constitution or the Code of Conduct of Judges which have allegedly been violated. The SCN is, therefore, vague, illegal and a nullity."
Explaining his objections to the inclusion of Chief Justice Qazi Faez Isa, Justice Naqvi claimed that as a member of the Judicial Commission of Pakistan in 2020, he had opposed Justice Naqvi's nomination as a judge of the Supreme Court.
"It was also reported that Justice Qazi Fazi Isa wrote a detailed dissenting note raising objections, inter alia, in respect of certain judgments of mine as a judge of the Lahore High Court (LHC), in particular the judgment in the case of late General (retired) Pervaiz Musharraf wherein a Full Bench of the Lahore High Court presided by me set aside the judgment of the Special Tribunal, my income tax returns and my assets declaration."
Justice Naqvi said that he was denied the provision of minutes of the meeting of JCP.
Regarding the inclusion of Balochistan High Court Chief Justice Naeem Afghan, Justice Naqvi pointed to the Audio Leaks Commission, wherein he was included as a member probing the alleged audiotapes belonging to the latter.
"It is clear from the chronology of events that the opinion was deliberately delayed till the composition of the SJC had changed after the retirement of Chief Justice Umar Ata Bandial. Further, the submission of the report was also leaked to the press and became a subject of press comment," Justice Naqvi argued.
He also requested the recusal of Justice Masood, arguing that as an SJC member, he wrote an opinion on complaints with a delay of three months and 27 days.
"I also reserve my right to submit that the proceedings against me are politically motivated and lack legality, propriety and transparency."