ISLAMABAD: The Supreme Court hearing petitions seeking open trial of the sitting judges facing references before the Supreme Judicial Council (SJC) was informed on Tuesday that closed door proceedings against judges stigmatised their reputation.

“Even though a judge is exonerated by the council but the proceeding was not open, it will create an impression among the minds of the people that the judge has been absolved of charges in consideration of some deal,” argued senior counsel Muneer A. Malik before a five-judge SC bench headed by Justice Sheikh Azmat Saeed.

The petitioners — Justice Shaukat Aziz Siddiqui of the Islamabad High Court and Justice Muhammad Farrukh Irfan Khan of the Lahore High Court — have requested the Supreme Court to order open trial of their references pending adjudication before SJC on misconduct.

Senior counsel Makhdoom Ali Khan, representing Justice Siddiqui, also argued that the public interest and the interest of the judge demanded that the proceedings should be held in the open because the judge against whom a finding of misconduct was recorded rendered stigmatised for life, lost his pension and his family was affected for generations.

Two high court judges facing SJC references on misconduct seek open trial

He invited the apex court’s attention to its 2010 judgement in the ex-chief justice Iftikhar Muhammad Chaudhry case in which the court had held that proceedings before the SJC were not a trial, though it left open the question whether such proceedings were to be conducted in open or in-camera. Thus the ex-CJ case was being relied upon by the SJC as a precedent for denying the right of a public hearing to judges being proceeded against by the council.

The counsel also drew the attention of the court to Article 209(5)(6) of the Constitution where it had been clear in its language that the SJC proceedings could not commence until the council prime facie was of the view that the judge was “guilty of misconduct”.

Likewise, he argued, the SJC could not recommend removal of a judge unless it came to a conclusion that the judge was guilty of misconduct. He cited the judgements in Al-Jehad, Malik Asad Ali and Munir Bhatti cases to establish that the president could not refuse to follow the recommendations of the SJC on the fate of a judge facing reference.

He said a refusal to follow such a recommendation would be unconstitutional and, therefore, a recommendation by the SJC was in fact an order for removal of the judge. In this case, he argued, the judge had no right or review, appeal or revision against such a recommendation.

Makhdoom Ali argued that in-camera proceedings before the SJC tarnished the image of a judge, adding that in a democratic society the public had the right to know why a high constitutional functionary was being proceeded against and the judge had the right to defend himself in the open court.

“It is for this reason that it has been repeatedly held that public inquiry is a rule and the in-camera proceedings are an exception to the rules,” the counsel said, adding that generally the recognised exception to the rule of open trial was the protection of the victim like rape cases or the protection of someone who was not in a position to defend himself or protect his reputation like the minor or a lunatic. Another exception included proceedings where the nature of process like invention or patent required secrecy or when national security or national secrets were involved, he said, adding that an inquiry against a judge when the judge himself was demanding public hearing did not fall in any exception.

The counsel said that parties like the attorney general office demanding in-camera proceedings had a burden of proving that their case fell within one of these exceptions.

Muneer Malik highlighted that three large issues were at stake in the matter — the fundamental rights of the petitioner judge, the fundamental rights of the people at large to access to justice and the independence of judiciary as a collective institution. He explained that the access to justice meant recourse to a judiciary in which the people rightfully lay their confidence.

The counsel argued that the 2010 Iftikhar Chaudhry case was not in the nature of trial and thus not proceedings for seeking civil rights, adding that the SJC had to be just and equitable.

He said the SJC proceedings should be confidential when it took up a complaint against a judge and evaluated whether or not to initiate proceedings against the conduct of the judge. But, he added, when the body decided in principle to go against the judge, the general practice was to hold in-camera proceedings which were not violative as long as minimum standards of fair opportunity were provided to the judge.

The court will take up the matter on Wednesday.

Published in Dawn, March 28th, 2018