ISLAMABAD: Justice Syed Mazahar Ali Akbar Naqvi has asked the Supreme Court to declare the initiation of proceedings by the Supreme Judicial Council (SJC) as coram non judice, without lawful authority and of no legal effect and quash the same.
Five senior lawyers, Sardar Muhammad Latif Khosa, Khawaja Haris Ahmed, Makhdoom Ali Khan, Syed Ali Zafar, and Saad Mumtaz Hashmi, on Monday, filed a petition on behalf of the Supreme Court judge, Justice Naqvi, against the SJC and the show-cause notice issued to him on 28-10-23.
The petitioner further asked the Court to declare that the purported show-cause notice dated 28-10-23 and the hearing notice dated 13-11-23 are without lawful authority and of no legal effect and quash them.
The lawyers submitted that the petitioner has been facing a malicious campaign since 16-02-2023. False and baseless allegations have been openly and publicly levelled against him.
A media trial has been conducted. This malicious campaign and the complaints are a direct and blatant attack on the independence of the judiciary.
They said it is evident from the record that the manner in which the proceedings have been initiated against the petitioner by issuing the show-cause notice dated 28-10-23 by the SJC is repugnant to and inconsistent with the fundamental rights guaranteed to him by the constitution. It is also in direct conflict with the judgments of the Supreme Court.
The issuance of press release dated 27-10-23 without the petitioner’s consent not only violates his fundamental rights but also subjects him to a media trial and further maligns and ridicules him in the public eye.
Further, the hearing notice dated 13-11-23 without first deciding the legal and constitutional objections raised in the petitioner’s preliminary response and without re-constituting the SJC, contravenes Article 209 of the constitution and the Supreme Judicial Council Procedure of Enquiry, 2005.
Justice Naqvi, in 18-page preliminary reply, sought the recusal of three members of the SJC, which is set to hear misconduct complaints against him.
He raised objections to the participation of three judicial members, namely CJP Faez, Justice Sardar Tariq, and Justice Naeem Afghan, and sought their recusal based on “bias” and other grounds. He stated that the three senior judges ought not to hear the complaints against him in the interest of propriety, justice and fairness.
“The proceedings against me have been conducted in a manner which is ex facie discriminatory and these; therefore, violate Article 25 of the Constitution”, he wrote in reply. He wrote that the preliminary objections are not a reply to the show-cause notice dated October 28, 2023, either on issues of jurisdiction or of maintainability. It is also not a response on merits.
There was no discussion or inquiry into the allegations against the petitioner. No information was sought either from him or any other quarter to verify the allegations.
Unlike, in the case against Justice Sardar Tariq Masood no information was even sought from the complainants. They were not required to be present on the next date. It was not observed that any information they want to bring forward may also be supplied to the petitioner.
There is nothing on the record to suggest that any information was placed before the Council or that it was discussed or that a decision to issue the show-cause notice was reached on the basis of any such discussion.
The Supreme Court has consistently held that a show cause notice to be valid and proper must specify the allegations that are required to be answered and the relevant provisions which have allegedly been violated.
The petitioner stated that the hearing notice is without lawful authority and of no legal effect. It was issued without first addressing the objections raised in the petitioner’s preliminary response. None of the documents requested were provided to the petitioner before issuing the hearing notice.
Those documents are essential for preparing a reply to the show cause notice and the petitioner’s defence. Not forming the petitioner of the specific allegation against him denies him a fair hearing, denies him of the equal protection of law, is against the principles of fair trial, violates the due process of law and prejudices his defence.
No further proceedings can be conducted till a final reasoned decision on recusal is made by the three members of the SJC and a copy made available to the petitioner.
The undue haste in proceeding against the petitioner without first deciding his legal and constitutional objections and providing him the essential material establishes that the proceedings are unfair and he is being denied a fair hearing in contravention of his Fundamental Rights guaranteed, inter alia, under Article 4, 9, 10A, 14, and 25 of the constitution.
A declared asset cannot be made basis to proceed against a judge in a complaint by a person who is an alien to the alleged transaction when no notice or proceeding has been initiated by the registering or taxation authority.
Copyright Business Recorder, 2023