ISLAMABAD: Descri­bing the allegations levelled in the fresh show-cause notice as “false” and “not supported by evidence”, Supreme Court Justice Sayyed Mazahar Ali Akbar Naqvi on Thursday moved a fresh petition before the top court, asking for the notice to be quashed.

The Supreme Judicial Cou­n­cil (SJC), which is seized with a set of complaints of misconduct against Justice Naqvi, iss­ued a revised notice on Nov 22 with a direction to come up with his defence within a fortnight.

In response, Justice Naqvi not only moved a fresh petition before the Supreme Court, but also wrote a one-page letter add­ressed to Chief Justice of Pakistan Qazi Faez Isa, Justice Sardar Tariq Masood and Jus­tice Ijazul Ahsan — all members of the committee of judges which decides fixing of petitions before benches as well as all members of SJC — with a request to immediately fix the petition before a bench of the apex court which should comprise judges other than those who may recuse themselves.

The letter highlighted that under sections 3 and 7 of the Sup­reme Court (Practice and Procedure) Act 2023, it was the responsibility of the committee of senior judges to fix a hea­­ring, no later than 14 days, of all those petitions moved under Article 184(3) or any app­lication seeking interim relief.

The letter said that the respondent judge filed two petitions challenging the proceedings against him before the SJC on Nov 20 and Nov 30, respectively, as well as an application seeking interim relief. Still, the SJC is proceeding against the judge and intruding on his fundamental rights on the basis of “frivolous allegations”.

‘Not misconduct’

Moved separately through a panel consisting of heavy-weight lawyers Sardar Latif Khan Khosa, Khawaja Haris Ahmed, Makhdoom Ali Khan, and Barrister Syed Ali Zafar, Justice Naqvi’s petition argued that breach of any of the Articles of the Code of Conduct for judges or some of the articles does not amount to misconduct within the meaning of Article 209(5) of the Constitution.

Moreover, the question of audio leaks cannot be made the basis for issuing the notice without any proof of its being genuine qua its source, date of recording, substance and contents without any forensic intervention to prove of its authenticity.

The petition contended that under Article 209 of the Constitution, the question regarding acquiring the property of the sons of the judge was not within the purview of the SJC, especially when they were independent professional advocates having foreign qualifications with resources and were also reasonable taxpayers.

The petition argued that a declared asset cannot form a basis to proceed against a judge in a complaint by a person who was an alien to the alleged transaction when no notice or proceeding was initiated by the registering or taxation authority.

Similarly, undue haste in proceeding against the respondent judge without first deciding his legal and constitutional objections and providing him with the essential material “establishes that the proceedings are unfair and the judge was being denied a fair hearing” in contravention of his fundamental rights guaranteed under Article 4, 9, 10A, 14, and 25 of the Constitution.

‘Blatant attack on judiciary’

Moreover, the campaign against the respondent judge and the consequent so-called complaints are a “direct and blatant attack on the independence of the judiciary”, the petition said, adding that these “are violative of and inconsistent” with the right to access to justice guaranteed under articles 4, 9 and 10A of the Constitution.

“Had SJC examined the so-called complaints it would have been obvious that no case for issuing a show cause notice was made out.”

The petition submitted that disclosing the respondent judge’s income tax returns to the complainants was in violation of his fundamental rights to liberty and privacy under articles 9 and 14 as well as in contravention of Section 216 of the Income Tax Ordinance (ITO) 2001.

Published in Dawn, December 1st, 2023

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