The Supreme Court (SC) reserved its verdict on Tuesday on former IHC judge Shaukat Aziz Siddiqui’s petition challenging his removal from office in 2018, ordering all respondents of the case to submit their replies within three weeks.

A five-member bench led by Chief Justice of Pakistan (CJP) Qazi Faez Isa heard the case. The bench included Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Hasan Azhar Rizvi, and Justice Irfan Saadat. The proceedings were broadcast live on the SC’s website.

On October 11, 2018, President Arif Alvi removed Justice Siddiqui as judge of the IHC on the Supreme Judicial Council’s (SCJ) recommendation.

The president took the decision under Article 209(5) on the recommendation of the Supreme Judicial Council (SJC) under Article 209(6) read with Article 48(1) of the Constitution, a notification issued by the Ministry of Law and Justice stated.

The council unanimously opined that while delivering a speech before the District Bar Association in Rawalpindi on July 21, Justice Shaukat Aziz Siddiqui, an IHC judge, displayed conduct unbecoming of a high court judge.

In his speech, Siddiqui made serious allegations against the country’s premier intelligence agency in a no-holds-barred speech at the Rawalpindi Bar Association.

He accused the Inter-Services Intelligence, or ISI, of manipulating the judicial proceedings. He was accused of not sharing any evidence to substantiate his allegations.

Justice Siddiqui alleged that the agency had approached the IHC chief justice seeking assurance that deposed prime minister Nawaz Sharif, his daughter Maryam Nawaz, and son-in-law Captain (retd) Safdar would remain behind bars until July 25, 2018 – the election day.

Ex-ISI chief’s response

A day earlier, ISI former director general Lt Gen (retd) Faiz Hameed denied the allegations levelled by judge Siddiqui with regard to manipulation of judicial proceedings in the Panama Papers case.

“The Respondent No 3 (Hameed) had never approached the petitioner at his residence on June 29, 2018 or on July 19, 2018, for apologizing to [him for] the alleged conduct of Respondent No 4 (ISI’s former official Brig Irfan Ramay),” said a reply submitted in the apex court.

“[The Respondent No 3 also never approached the judge] for seeking guidance to protect the prestige of the ISI, by modifying any order passed by the Petitioner (Siddiqui),” it added.

In his reply, the former ISI chief said the allegations levelled by the former IHC judge are “absolutely false, concocted and based on an afterthought.”

He said he never inquired from Siddiqui about the procedure in the IHC for hearing appeals against orders of accountability courts, particularly their orders convicting former prime minister Nawaz Sharif.

Read Bajwa, Faiz made party to IHC judge case

Hameed stated that he never asked the petitioner whether such an appeal would be listed for hearing in a bench comprising the sacked judge.

Today’s hearing

During today’s hearing, CJP Isa observed that all respondents have agreed to the fact that a proper inquiry was not conducted in the case. He remarked that the SJC was a powerful body and had the authority to summon anyone.

Siddiqui’s lawyer, Advocate Hamid Khan, argued that the SC should declare the SJC’s sacking of the former as unconstitutional.

The CJP remarked that we cannot decide a case on coin toss. “What if the allegations are not true? How can we decide the case when we don’t know if the allegations are true or false? But we want to set an example through these cases. The allegations were made publicly. If the allegations are found to be false after an inquiry, will the decision to remove the judge stand? We asked those who were accused to be made parties. Who will get to the bottom of these allegations? We are now looking to find a solution to the problem. The other party can say that the allegations were never investigated,” Justice Isa observed.

At this Siddiqui’s counsel suggested that the solution was to nullify the action of the council, and the removal of the judge by the president. “The SC should form a commission to investigate Siddiqui’s allegations,” he said.

“How should we form a commission? Should we refer the matter to the council again? No one is telling the truth,” the CJP retorted.

Ex-ISI chief Faiz Hameed’s counsel Khawaja Haris said that the court should only focus on the judge’s public speech.

The CJP remarked that the case concerned the independence of the judiciary and the working of the judicial council. “The council’s working should be per the law. The council did not fulfil the requirements before taking action. How can the SC decide the case under these circumstances?” Justice Isa maintained, asking the attorney general to also weigh in on the matter.

Member of the SC bench, Justice Jamal Khan Mandokhail asked whether a judge should have made such a speech.

At this, the CJP remarked that “we cannot ignore facts”. He said judges address bar associations. “The question is not about the speech, but what was said in it,” he added, stating that Article 19 does not define a code of conduct for judges. The judges’ code cannot allow speeches, he said referring to the culture of judges in the US participating in debates.

Justice Isa added that the court could conduct an inquiry itself. “It is not a good practice to accuse a subsidiary body of the government,” the CJP said clarifying that he will not refer to the premier intelligence agency as an institution in itself.

Further during the hearing, Siddiqui’s counsel argued that the entire inquiry should be annulled, and the matter sent back to the SJC. At this, the CJP questioned if the SC had the power to do this. Khan stressed that the council did not conduct a complete inquiry.

However, the ex-ISI chief’s counsel said that the matter could not be referred back to the council because Siddiqui’s term as a judge had also ended. “His speech alone is enough to prove that he showed misconduct; he also ridiculed the judiciary in his speech,” the counsel stated.

The chief justice then inquired which provisions of the code of conduct were violated by the judge’s speech and asked the counsel to read the same.

The CJP further said that the speech can also be looked at from the perspective of bringing into knowledge, rather than for publicity.

When the lawyer for the former spy chief contended that Siddiqui could have brought the same to the then-CJP’s knowledge, Justice Isa remarked that there should be a standard for accepting the words of a chief justice and of a judge.

Emphasising that the nation has endured a lot, the chief justice maintained that he is more concerned about the reputation of the institution.

Referring to Siddiqui’s removal, CJP Isa said the judge was removed without an inquiry. He maintained that legal procedures should have been adhered to in the case and all parties have agreed that there was no proper inquiry conducted.

The attorney general, referring to the Afia Zia Shehrbano case, stated that the judge’s removal was against established legal requirements. He maintained that action cannot be taken against a judge after removal or resignation and added that an appeal has been filed against the provision.

The AGP then requested the court to review the Shehrbano case and link it with other similar cases, saying that “Shaukat Siddiqui’s status as a retired judge will become invalid if the action of the council is invalidated”.