ISLAMABAD: The Supreme Court on Wednesday reserved its ruling on determining whether it should allow public hearing of references against two high court judges facing allegations of misconduct.

If granted this will be the first of its kind verdict in which a new jurisprudence in Pakistan’s judicial history will evolve.

A five-judge Supreme Court bench headed by Justice Sheikh Azmat Saeed had taken up two petitions moved by Justice Shaukat Aziz Siddiqui of the Islamabad High Court (IHC) and Justice Mohammad Farrukh Irfan Khan of the Lahore High Court (LHC) seeking public trial of references pending adjudication against them before the Supreme Judicial Council (SJC).

On Wednesday, Attorney General Ashtar Ausaf emphasised that the SJC was not a court or a domestic tribunal which determined any rights of a petitioner or handed down a judgement. The SJC came up with recommendations in the form of a report and was, therefore, declared a unique institution by the Supreme Court in 2001 in the Asfandyar Wali case which was then upheld by the apex court in 2010, the AG argued.

Attorney general says at best SJC is just a fact-finding domestic forum

Therefore, the arguments of the petitioner that Article 10A of the Constitution guaranteed fair trial would not apply to this case, the AG said, adding that the council not only looked into the conduct of a judge, but also put together a code of conduct for the judges to follow.

The Constitution did not recognise the SJC as a court and, therefore, the council had no power to make a final pronouncement to make it obligatory on parties, the AG contended, adding that at best the council was just a fact-finding domestic forum.

He also explained that the present five-judge bench was not sitting in appeal on interim orders of issuing show-cause notices by the SJC to the petitioner judges.

About the SJC rules and procedures, Mr Ausaf emphasised that at best these were indoor management, and not a law. What the SJC was doing was conducting inquisitorial inquiry against the judges by peers and, therefore, it was a class apart, he said.

When during the proceedings senior counsel Hamid Khan, representing Justice Farrukh Irfan, raised objections to AG’s argument by asking whether he was reflecting his own opinion or the federal government’s point of view which already had supported the open trial, Mr Ausaf explained that he was on a court notice and since the references being faced by the judges were not referred to the SJC by the president rather public complaints, the federal government was not a necessary party in this matter.

Earlier, Hamid Khan objected to the presence of a judge in the SJC as member who himself was facing a reference before the council. At this, the AG said that propriety demanded that the judge not be named by the counsel.

But the counsel argued that since the current proceedings were not in-camera, there was no harm in revealing his name, adding that no one should be the judge of his own cause.

Hamid Khan argued that the SJC lacked any rules making authority under the Constitution, adding that the legislatures had explicitly said so where it wanted to give authority or rule-making powers to anybody or institution.

He said this omission on the part of the legislatures was not accidental but deliberate, adding that the SJC should be governed through a act of parliament. The SJC was at a disadvantage until the procedural powers were supplied by the parliamentary body, the counsel argued, adding that the Constitution was an organic law and not a word or even a comma could be added or deleted from it.

Thus the procedure laid down by the SJC to conduct its proceedings would not stand the scrutiny of the Constitution, he said, adding that as long as a judge was under the clouds, he was suffering from an inability.

Justice Sheikh Azmat Saeed, however, asked if the SJC did not have any authority to rule making did it not mean that the procedures it had adopted was a non est. But the procedures it had followed should be based on the principle of natural justice, the judge observed.

When during the proceedings Hamid Khan appreciated that now dissenting notes had started coming by different judges of the Supreme Court, Justice Sheikh observed on a lighter note that he would reveal after his retirement why no dissent used to come in the past.

Published in Dawn, March 29th, 2018