The Supreme Court on Friday unanimously decided to set aside the Supreme Judicial Council's (SJC) opinion on removing former Islamabad High Court (IHC) Justice Shaukat Aziz Siddiqui, describing the removal as "illegal" and "unlawful."
The top court also restored Justice (retired) Siddiqui's perks and pension, observing, " Unfortunately, the delay that occurred in hearing and deciding these petitions meant that in the interregnum, Justice (retd) Siddiqui attained the age of 62, at which age a judge of the high court retires. Therefore, Justice (retd) Siddiqui cannot be restored to the position of judge.”
The decision by a five-judge bench, led by Chief Justice Qazi Faez Isa, came in a case where Justice (retd) Siddiqui had challenged his removal as a senior judge of the high court and the suspension of his pension. Justice (retd) Siddiqui was removed in 2018 for a speech he gave before the bar wherein he accused the military establishment of coercing the judiciary and engaging in political engineering against Pakistan Muslim League-Nawaz (PML-N) Supremo Nawaz Sharif. The five-member bench also included Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Syed Hasan Azhar Rizvi and Justice Irfan Saadat Khan. Chief Justice Isa authored the 23-page judgment.
"The SJC’s Report/Opinion, dated October 11, 2018, which was submitted to the President, and the Notification No. F.9(2)/2018-A.II, dated October 11, 2018, stated to have been issued on the advice of the prime minister and his cabinet of ministers is set aside. Consequently, Justice (retd) Siddiqui shall be deemed to have retired as a Judge of the Islamabad High Court, and he will be entitled to receive all the benefits and privileges due to a retired judge by allowing these petitions in the above terms," the top court ruled.
The top court held that the Constitution does not permit the removal of a judge from office without first holding an inquiry into any alleged misconduct.
The court held that in the case of Justice (retd) Siddiqui, the SJC proceeded on the assumption that the truth or falseness of the allegations levelled by Justice (retd) Siddiqui was irrelevant, adding that the Council proceeded to opine that Justice (retd) Siddiqui had failed to substantiate, independently corroborate or prove the allegations he had levelled.
“Justice (retd) Siddiqui had undoubtedly levelled very serious allegations against General Faiz Hameed, who was then serving in the Inter-Services Intelligence (‘ISI’), and a few of his subordinates in the ISI, who he accused of manipulation of certain sensitive cases in the Islamabad High Court and in the Accountability Court, which was under the jurisdiction of the Islamabad High Court,” the court observed.
“However, Justice (retd) Siddiqui was not given an opportunity to establish his allegations nor brought face to face with those he had accused. When we noted this lapse, we issued notices to all those against whom he made allegations and provided them with an opportunity to admit/deny them. All of them have denied their stated involvement," the court held, adding that the supreme council of jurists should have taken additional steps to ensure justice. "Therefore, it was all the more necessary for the SJC to have inquired into the matter and to have determined who was telling the truth.”
“Justice (retd) Siddiqui was not given an opportunity to establish the veracity of his allegations, which was incumbent on the SJC when the same formed the basis of Justice (retd) Siddiqui’s removal from office,” the judgement read, adding that Justice (retd) Siddiqui was deprived of his fundamental rights to fair trial and due process.
The order noted that the SJC dispensed with the need to hold an inquiry into the matter but without offering any compelling or justifiable reason for it and did so by negating Justice (retd) Siddiqui’s inalienable fundamental rights.
The top court went on to note that the instant case had two aspects, including the independence of the judiciary and its freedom to decide cases without fear, while the other is the accountability of judges.
“If a judge can be removed without even inquiring into the allegations levelled by or against the judge, the independence of the judiciary receives a severe setback. The removal of a judge is undoubtedly a matter of public importance and of public interest,” the top court said, adding that without an independent judiciary, fundamental rights are jeopardised.
“If the SJC, after conducting an inquiry, had determined that Justice (retired) Siddiqui had levelled false allegations, he would have been guilty of misconduct, but without inquiring into the matter, it could not be said that he had levelled false allegations.”
Justice (retd) Siddiqui also implicated the then-IHC Chief Justice Anwar Kasi in the matter, but the latter went scot-free.
“It cannot be assumed that a person in a senior position would be telling the truth while one junior to him would not,” the top court observed.
The court held that the SJC had determined that Justice (retd) Siddiqui was guilty of misconduct without ascertaining the veracity of his allegations and without conducting an inquiry but merely because he had taken the matter public.
“If all that Justice (retd) Siddiqui alleged was true, then it would be unjust and unfair to punish him for highlighting wrongdoing at the highest level. But if, on the other hand, what he had alleged was found to be false, then he would be guilty of misconduct.”
The judgement went on to note that the Chief of Army Staff and the government at the time had also explicitly requested to ascertain the veracity of the allegations, adding that the Chief of Army Staff and the government wrote two separate letters to the top court, requesting it to initiate appropriate legal processes to ascertain the veracity of the allegations and take actions accordingly.
"Unless the law governing an individual prohibits disclosure, telling the truth is never made punishable.”
The court said that the government, in another concise statement filed by the Attorney General for Pakistan, termed the allegations baseless and denied them.
“The irreconcilable contradiction was not reconciled by the Attorney-General, nor was it disclosed how it had been ascertained that the allegations were baseless. Learned Anwar Mansoor Khan, who was then the Attorney General, had undermined his credibility by his own conduct.”
The court noted that the SJC was also apparently misled by the Attorney General’s understanding of the law in contending that the SJC could go beyond the provisions of the Code of Conduct to determine what constitutes misconduct by a judge.
"The Constitution has empowered the SJC to issue the code of conduct, however, once it issues it, the SJC must only adjudge in accordance therewith. This is also concomitant in ensuring the independence of the judiciary since judges must not be left vulnerable to the likes and dislikes of the members of the SJC or to the vicissitudes of governments or to that of complainants."