ISLAMABAD: The Supreme Judicial Council (SJC) — a constitutional body tasked with scrutinising conduct of superior court judges — deferred on Tuesday a reference against a sitting judge of the Islamabad High Court (IHC) over misconduct.

Chief Justice Mian Saqib Nisar stayed the proceedings of the council in view of the pending proceedings before a five-judge Supreme Court bench headed by Justice Gulzar that had taken up the petition of Justice Shaukat Aziz Siddiqui of IHC.

The petitioner judge is asking for an open trial of his reference pending before the council instituted on the complaint by some retired employee of the Capital Development Authority (CDA) on the charge of refurbishment of his official residence beyond entitlement.

During the proceedings before the larger bench of the Supreme Court, Justice Sheikh Azmat Saeed wondered why Article 10 A of the constitution, which guaranteed the right to fair trial, could not be applied to the judges when it was applicable even to an office boy.

At the last hearing before the Supreme Court, senior counsel Makhdoom Ali Khan while pleading the case of the petitioner judge had argued that a judge also had a fundamental right to ask for a public hearing and the words used in Article 10A of the constitution like “the civil rights obligation” could not be said not to apply in the case of the judge.

The case before the Supreme Court bench had been adjourned for Wednesday since the counsel could not make it today.

At the last hearing on Nov 2, a two-judge Supreme Court bench that referred the matter back to the chief justice for the constitution of the larger bench had also sought assistance of Attorney General Ashtar Ausaf since constitutional interpretation were involved.

In its order the Supreme Court had also noted that the grounds urged by the petitioner judge was of first impression and, therefore, required serious consideration which included constitutionality of Rule 13(1) of the Procedure of Inquiry of 2005 of SJC.

In his petition before the Supreme Court, Justice Shaukat Aziz had pleaded before the apex court to suspend the proceedings of the council till the pendency of his petition.

The petition has also questioned paragraph 13 of SJC Procedure of Inquiry 2005 which deals with in-camera proceedings, and argued that the section was in violation of Articles 4, 10A, 18 and 25 of the constitution because it did not allow trial before the council to take place in accordance with the law and was detrimental to the life and liberty of the one facing trial.

The petition argued that the SJC had erred by observing that it was on account of the sanctity of the institution and the dignity of the applicant and other judges whose matters were inquired into by the council that in-camera proceedings were expedient.

“It is in the larger interests of the judiciary that the proceedings are not conducted in open court as the issues brought before SJC and the allegations levelled may ultimately be proved to be false, frivolous and vexatious,” the council had held in its order.

But the petitioner judge had argued that the sanctity of no institution can be protected by making it a cloistered virtue.

“There is no greater protection than free speech and a free press for the independence of the constitutional institutions,” the petition argued.

Moreover, the petitioner has nothing to hide and his dignity is not compromised if the proceedings are held in the open, the petition said, adding that it was not in the interest of the judiciary if the proceedings of the council were held in-camera because it would damage the image of the institutions.

“The very guardians of justice cannot deny their brethren the protection of a public hearing due process,” the petition emphasised.

Published in Dawn, November 8th, 2017

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