The Supreme Court on Tuesday asked whether it could refer Islamabad High Court's (IHC) deposed judge Shaukat Aziz Siddiqui's case back to the Supreme Judicial Council (SJC) for consideration.
The top court directed parties in the Justice (retired) Siddiqui case to provide their arguments in writing within three weeks, along with answers to three other questions.
The direction came as a five-member bench of the Supreme Court, headed by Chief Justice Qazi Faez Isa and comprising justices Amin-ud-Din Khan, Jamal Khan Mandokhail, Hasan Azhar Rizvi and Irfan Saadat Khan, reserved its verdict on Justice (retired) Siddiqui's plea challenging his dismissal from the IHC for blowing the whistle on the coercion faced by the judges by the country's top spy agency.
The Supreme Court, however, said that it could re-assemble to conduct proceedings in the case if deemed necessary after reviewing the submitted written replies.
The other questions the parties were asked to answer during the hearing included: what would be the consequences if the inquiry in SJC was not completed as per the Constitution and the rules?
Justice (retired) Shaukat Siddiqui was removed from his position in the Islamabad High Court by the Supreme Judicial Council in October 2018 following his anti-establishment outburst on a public forum in which he claimed to have been visited by the country's spy chief and coerced to issue a verdict against the deposed prime minister Nawaz Sharif, his daughter Maryam and son-in-law Captain Safdar.
Having attained the age of superannuation on June 30, 2021, he filed a petition in the top court for the resumption of his pension.
On Tuesday, while citing the retirement age, the top court asked what relief could be extended to Justice (retired) Siddiqui in case his appeal is allowed.
"Whether the speech of Shaukat Siddiqui itself is not a violation of the Code of Conduct if the proceeding before SJC is not required?" the top court further asked.
During Tuesday's hearing, Chief Justice Isa observed that the problem was not the speech but rather the contents of the speech. He added that if allegations were made in the speech or a vicious attack was launched, then the two elements could not be disconnected.
He further observed that if a judge can be removed for a speech, then half of the judiciary will have to go home, adding that the judge's code of conduct does not prevent them from speaking.
The problem is when you make demands in your speech, said Chief Justice Isa.
Citing examples from other countries, the top judge remarked how judges give interviews in Britain and participate in debates in the United States.
He further observed that the nation had endured enough now, adding that there were concerns relating to the institution's reputation and that the nation should know the truth.
Justice Mandokhail asked whether it was appropriate for a judge to make allegations the way Justice (retired) Shaukat Siddiqui had done.
Advocate Hamid Khan, who had appeared on behalf of Justice (retired) Siddiquie, argued that the SJC could not present a report to the President without an inquiry and requested the court to conduct a fair inquiry into the matter.
Chief Justice Isa inquired as to whether Justice (retired) Siddiqui had admitted the allegations against him or had rejected them.
Hamid Khan responded that his client had denied all allegations. The lawyer further contended that the responses submitted before the SJC made it clear that the SJC did not conduct any inquiry.
"If there had been an inquiry, witnesses would have appeared, and cross-examination would have been allowed," he argued. He requested the bench to declare the removal of the former judge to be unlawful.
Attorney General of Pakistan (AGP) Mansoor Usman Awan also conceded that a factual inquiry had not been conducted.
At this, Chief Justice Isa asked how a five-member bench of the SC could then decide on the case.
He further asked what would happen if it failed to determine whether the allegations were true or false. He added that the allegations had been made in public. Should the allegations be proven as false, he questioned whether the decision to remove the judge would be maintained.
Hamid Khan said that the decision regarding the removal of his client should first be set aside. Then a commission should be constituted to conduct an inquiry into the veracity of the allegations.
Upon the court's query whether the matter could be remanded to the SJC, the counsel responded in the affirmative.
However, senior lawyer Khawaja Haris, who appeared on behalf of the former Inter-Services Intelligence (ISI) Director General Lt Gen (retired) Faiz Hameed and Brigadier (retired) Irfan Ramay, responded in the negative.
He argued that Justice Siddiqui had attained the age of superannuation and could no longer be restored as a judge. Therefore, the SJC could no longer review the matter.
Chief Justice Isa maintained that if the SJC's recommendation of removal is set aside, then the allegations would be deemed true.
However, Khawaja Haris argued that no allegation has been levelled against his client, Lt Gen (retired) Faiz Hameed, either during Justice Siddiqui's speech or before the SJC. He informed the bench of the SJC's observation that Justice (retired) Siddiqui had dishonoured the judiciary.
Khawaja Haris argued that judges should not get embroiled in public or political controversies and that the judiciary was ridiculed in the speech.
After hearing this, Chief Justice Isa remarked that the speech could also be seen as an indicator instead of an act for publicity.
During the hearing, AGP Awan requested the top court to hear the instant case along with another appeal against the judgment in the Afiya Shehrbano Zia case, wherein Justice Muneeb Akhtar had held that judges who retire or resign do not fall within the ambit of Article 209 of the Constitution.
On the issue of an inquiry in Justice (retired) Siddiqui's case, Justice Rizvi asked if there was a need to conduct an inquiry when a judge's speech was clear and available. He added there were allegations of corruption against Justice (retired) Siddiqui as well.
Justice Mandokhail asked who had prepared the complaint against Justice (retired) Siddiqui. If the then-registrar had prepared the complaint, then in what capacity can the registrar write a note to the council against a judge?
Advocate Hamid Khan argued that the case was fixed for hearing only once, during which the ex-judge was called.
Justice Mandokhail pointed out that the former IHC judge was not accused of saying anything right or wrong. Still, he was accused of defaming the judiciary in public.
Hamid Khan contended that when Siddiqui's case was brought up, the SJC was conducting an inquiry against former Islamabad High Court (IHC) chief justice Anwar Khan Kasi, claiming that Kasi was acquitted after he dismissed Justice (retired) Siddiqui's allegations.
On Tuesday, former IHC Chief Justice Anwar Kasi was represented in court by Advocate Wasim Sajjad.
Chief Justice Isa clarified that the Supreme Court was not a watchdog of the SJC, adding that the latter is a strong constitutional body. He referred to Article 210 of the Constitution, observing that the SJC had broad constitutional powers and every such body had the right to make independent decisions.
He added that the decision in Justice (retired) Siddiqui's case could be used as a judicial precedent for the next 50 years.
After framing the questions for written submissions from the parties, the top court reserved its judgment.
It is pertinent to note that at the last hearing of the case in December 2023, the top court had refused to issue a notice to former Chief of Army Staff General (retired) Qamar Javed Bajwa while terming Justice (retired) Siddiqui's allegations of political engineering against him as hearsay.
The top court had, however, issued notices to former ISI chief Lt General (retired) Faiz Hameed and Brigadier (retired) Irfan Ramay. The two former military officers, through their counsel Khawaja Haris, had denied allegations levelled against them regarding the manoeuvring and managing of the judiciary to oust former prime minister Nawaz Sharif from politics. In a written statement submitted to the top court on Monday, Hameed termed the allegations false, frivolous and concocted.