ISLAMABAD: The attorney general’s (AG) office is looking into how a reply on behalf of the Ministry of Law in a pending matter concerning a demand for the open trial of a sitting judge of the Islamabad High Court (IHC) was made available to the media when it was yet to be approved and filed in the Supreme Court.

A source told Dawn that a letter had been written to the law ministry by the AG office expressing wonder how the media was informed about the content of the petition when it was yet to be approved.

When Attorney General Ashtar Ausaf was asked about the development, he denied that any such reply had been filed in the apex court. The Supreme Court office also said it had received no such reply from the law ministry.

It is believed that in the proposed reply, made available to the media, the law ministry through the attorney general’s office was considering requesting the Supreme Court to declare as unconstitutional the Supreme Judicial Council (SJC) Procedure of Inquiry 2005 under which the SJC regulates its proceedings against judges of the superior courts whenever it receives any complaints of misconduct against them.

Supreme Court is seized with petition filed by Justice Shaukat Aziz Siddiqui for his open trial by SJC in a reference against him

The law ministry stated in its reply, it is believed, that the SJC procedure of inquiry should be referred to parliament for the enactment of the prescribed procedure in accordance with the constitutional guarantees.

A five-judge Supreme Court bench headed by Justice Gulzar Ahmed is seized with a petition moved by IHC’s Justice Shaukat Aziz Siddiqui requesting the apex court for his open trial by the SJC which is hearing a reference against him for alleged misconduct.

At the last hearing on Nov 8, the apex court had appointed two amicus curiae (friends of the court) - Muneer A Malik and Shahid Hamid - and ordered the AG to furnish the federal government’s reply in two weeks detailing reasons why it wanted in-camera proceedings of the reference.

The SJC has already deferred proceedings in the reference, pending a decision on the petition instituted on a complaint by a retired employee of the Capital Development Authority (CDA) against the judge for the alleged refurbishment of his official residence beyond entitlement.

In his petition being pleaded through senior counsel Makhdoom Ali Khan, the petitioner judge questioned paragraph 13 of the SJC Procedure of Inquiry 2005 which is about in-camera proceedings.

The petition contended that the section was in violation of Articles 4, 10A, 18 and 25 of the Constitution because it does not allow trial before the council to take place in accordance with the law and is 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 dignity of the applicant and other judges whose matters are inquired into by the council that in-camera proceedings were expedient.

In its order of refusing the earlier request for the open trial, the SJC had held that it was in the larger interests of the judiciary that the proceedings were not conducted in an open court as issues brought before the SJC and allegations levelled may ultimately be proved to be false, frivolous and vexatious.

But the petitioner judge argued that the sanctity of no institution can be protected by making it a cloistered virtue, adding there was no greater protection than a free speech and free press for the independence of the constitutional institutions.

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 it was not in the interest of the judiciary if the proceedings were held in camera because it would damage the image of the institutions.

Published in Dawn, November 28th, 2017

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