The Supreme Court on Tuesday rejected Justice Sayyed Mazahar Ali Akbar Naqvi’s request to stay proceedings in the Supreme Judicial Council (SJC) against him over alleged misconduct.
The decision was taken as a three-member bench — comprising Justice Jamal Khan Mandokhail, Justice Aminuddin Khan and Justice Musarrat Hilali — took up a set of petitions challenging the issuance of show-cause notice to Justice Naqvi.
In October last year, the SJC had issued a show-cause notice to Justice Naqvi in connection with 10 complaints lodged against him and directed the judge to submit a reply within two weeks.
In his response, Justice Naqvi had raised issues with the SJC inquiry against him and called for Chief Justice of Pakistan (CJP) Qazi Faez Isa and two other judges to recuse themselves from the matter.
On Nov 20, Justice Naqvi contested the SJC proceedings against him and also challenged the show-cause notice issued to him by the council, stating the initiation of proceedings was coram non-judice and without lawful authority.
Subsequently, the SJC had issued a fresh show-cause notice to Justice Naqvi on Nov 22, with a direction to come up with his defence by filing a reply within a fortnight.
On December 4, Justice Naqvi had again approached the apex court and expressed his intent to pursue the constitutional petition he had moved earlier seeking to quash the revised show-cause notice issued by the SJC.
Two days later, Justice Naqvi had invited the attention of the SC committee comprising three senior-most judges to the silence over his petitions challenging the issuance of the show-cause notice (SCN) despite the lapse of time as stipulated in the Supreme Court (Practice & Procedure) Act, 2023.
Justice Naqvi had also written a separate letter to the SJC secretary, asking the latter to furnish a number of documents without which, the judge said, he would not be in a position to prepare his reply to the show-cause notice within time.
On December 15, the SJC, in an open hearing, had given two weeks to the top court judge to respond to the misconduct allegations and directed him to submit a reply to the show-cause notice by January 1.
At the previous hearing, Justice Naqvi withdrew his earlier objection to the three-judge bench hearing his petition that challenged the show-cause notice’s issuance.
Makhdoom Ali Khan, the counsel for Justice Naqvi, had told the apex court that the judge had not raised any objection to the jurisdiction or composition of the bench but rather its constitution since it was not properly formed by a committee of three senior judges that constitute benches, and he would prefer to advance his arguments purely on merit.
The hearing
At the outset of the hearing today, Justice Naqvi’s counsel said Article 209 (Supreme Judicial Council) of the Constitution gave protection to judges. The lawyer advised the bench to look into the said law and also the SJC Inquiry Rules 2005.
“Under the rules, the role of a complainant against a judge is very limited,” he contended. “The president of the state or the SJC itself initiates proceedings against judges,” he added.
Here, Justice Mandokhail inquired if bar councils could file a complaint against a judge, highlighting that bar councils had also submitted requests during Justice Isa’s case.
“Justice Yahya Afridi had said that complaints against judges can be made by bar councils,” the judge added.
For his part, Makhdoom pointed out that the SJC had also dismissed 21 petitions on the day it decided to proceed ahead on the complaints filed against Justice Naqvi.
At this, Justice Khan said the matter was before the apex court now, adding that the court thought the complainants should be issued notices otherwise proceedings would not be able to proceed.
“How can we not listen to the stance of complainants when you are saying that the complaints are based on malice?” Justice Mandokhail asked, to which Makhdoom said the court had to protect its institution.
Justice Naqvi’s counsel went on to say that if the complainants were made parties to the case, applications under Article 184(3) — an inherent power of the Supreme Court to enforce fundamental rights as guaranteed under the Constitution — would be filed against all the complaints dismissed by the SJC.
Here, Justice Hilali asked if anonymous petitions against the judge were also heard to which Makhdoom replied in the negative. “There is no anonymous complaint against Justice Naqvi,” the lawyer said.
Subsequently, the apex court rejected Justice Naqvi’s request for an injunction on the SJC proceedings. Justice Mandokhail said the SJC was a constitutional body and the Supreme Court could not order it to do anything.
In his defence, Makhdoom recalled that the court had ordered a stay on the SJC proceedings in the case of former CJP Iftikhar Muhammad Chaudhry.
Justice Mandokhail asked what would happen if the Supreme Court granted the injunction and the SJC continued with the proceedings while Justice Khan said the court had to look at the case of the parties involved in the current matter.
The court subsequently ordered that the complainants against Justice Naqvi, including Mian Dawood, be made parties to the case and adjourned the proceedings indefinitely.
The SJC will next resume its proceedings against the judge on Jan 11 (Thursday).
Justice Ijazul Ahsan details reasons for dissenting in 2nd show-cause notice
Separately, Justice Ijazul Ahsan detailed his reasons for dissenting from the SJC’s Nov 22 decision to issue a fresh show-cause notice to Justice Naqvi.
Before elaborating on his reasons, the judge said he wanted to comment on the manner the proceedings were being conducted, adding that they were being held “in undue haste contrary to established norms”.
He said the SJC was a body that should “act with deliberate care and after full, frank and detailed discussion”, particularly when there was no unanimity and some members were inclined to disagree with the majority.
The judge rued that the above approach was “entirely lacking” in the present proceedings with debate and discussion “non-existent and has not been permitted”.
He added that the Nov 22 SJC proceedings were also “completely devoid of any discussion or deliberation”, adding that this manner had “cast an unwelcome doubt over the whole process” and he disagreed with it.
Regarding the allegations against his fellow judge, Justice Ahsan said they were “utterly without merit or substance, both in law … even on a prima facie appraisal of the facts”.
He said the bulk of the allegations were about various properties and transactions related to them. Justice Ahsan said certain of these allegations were related to assets and transactions regarding the properties of Justice Naqvi’s sons.
Justice Ahsan said the sons were independent lawyers with their own means thus they were “effectively being condemned unheard”. He said this and the allegations about them were “directly contrary” to the findings in the detailed January 2022 judgement in a case related to Sarina Isa, the wife of Chief Justice of Pakistan Qazi Faez Isa.
The judge argued that hence, the allegations against Justice Naqvi regarding his sons were unsustainable and could not be charged against him.
Concerning allegations about Justice Naqvi’s properties, Justice Ahsan said the proper course of action would have been to hear the former about them just as the complaints were given the chance to explain their stance.
He said “not a shred of any credible evidence” was provided by the complainants about these allegations with everything being “hearsay or worse”.
Criticising how the allegations were dealt, the judge said he did not find it acceptable the basis on which the show-cause notice was issued, saying a “reasoned and deliberative approach ought to have been adopted which would have prevented the council from falling into the error that has now been committed with the issuance of the show-cause notice”.
Regarding the first allegation that Justice Naqvi was “approachable”, Justice Ahsan termed it a “highly noxious claim that is based entirely on audio clips or judicial orders.”
He said that no judicial order could be the basis for proceedings under Article 209 and this was “settled beyond doubt”.
Similarly, he said the law was “equally well settled” by more than one apex court judgement on the use of audio or video clips in proceedings. Justice Ahsan thusly said this allegation and its inclusion in the show-cause notice were a “clear violation of settled law”.
He concluded that the notice should never have been originally issued and should be immediately recalled.
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