ISLAMABAD: In a move that has no precedent in Pakistan’s judicial history, the Supreme Judicial Council (SJC) on Saturday accepted a plea by a sitting judge of the Islamabad High Court (IHC) to conduct his trial for misconduct in an open court.

“The SJC reconsidered our April 3, 2017 application demanding an open trial and finally accepted it,” explained senior counsel Hamid Khan, talking to Dawn. Now the evidence against Justice Shaukat Aziz Siddiqui of the IHC will be recorded on July 30, in an open court.

The senior high court judge was issued a show-cause notice by the SJC on Feb 15, 2017, for misconduct on a complaint by a retired employee of the Capital Development Authority (CDA) for alleged refurbishment of his official residence beyond what he was entitled to.

Earlier on May 18, 2017 the SJC had rejected his application requesting an open trial instead of holding the proceedings in-camera, as is the norm in such cases. The applicant had stated that Article 10A of the Constitution ensured fair trial and due process.

But the SJC reconsidered this request in light of the May 10, 2018 verdict of a five-judge Supreme Court bench, headed by Justice Sheikh Azmat Saeed, which empowered the SJC to decide the plea afresh by revisiting its May 18 order of holding an in-camera hearing.

“Consequently, the question regarding conduct of proceedings in an open court as requested by the petitioners needs to be revisited and decided afresh by the SJC notwithstanding and uninfluenced by its order dated May 18, 2017,” the judgment held.

The SJC’s decision on Saturday may also affect the trial of Justice Muhammad Farrukh Irfan Khan of the Lahore High Court who is also seeking a public trial of a reference pending adjudication against him before the SJC. He also had moved a similar petition before the five-judge Supreme Court which decided the case on May 10, 2018.

The detailed judgement spanning over 77 pages had explained that the SJC could always direct in-camera proceedings if there was reasonable apprehension that the judge, whose capacity or conduct was being inquired into, or his lawyers were likely to indulge in scurrilous and scandalous allegations against the SJC or its members, especially with the intent to publicise it to hinder council proceedings.

In his April 3, 2107 application before the SJC, Justice Siddiqui had pleaded that the council was the first and the last forum to decide his fate. Therefore Rule 13 of the SJC Procedure of Inquiry Rules of 2005 should be dispensed with and the constitutional guarantees enshrined under Article 10-A, which ensures a fair trial, be protected.

The application also contended that Rule 13 violated his legal and fundamental rights, adding that it was a well-settled law that provisions of organic law should prevail over the rules more so when the rules are framed without mandate of the Constitution.

The application added that any adverse recommendations or findings against the judge sent to the president of the country by the SJC could form the basis of his or her removal, leaving the applicant without recourse. The president cannot sit in appeal on the report of the SJC and that the applicant has no right to request hearing before the president, the application argued, adding the entire career of the applicant and his reputation depended on the report of the SJC.

To make such findings in secret and behind closed doors would remove transparency or possibility for accountability, the application stated, also adding that the in-camera rule and its implementation was both arbitrary and opaque.

The judges strive to uphold, implement and protect these rights on a daily basis, the application said. It would, therefore, be unfortunate if judges themselves were to be deprived of such protection and were subject to secret trials, it said.

Published in Dawn, July 8th, 2018