Case of misconduct: Counsel argues for open trial of IHC judge
Says in-camera proceedings before SJC to tarnish judge’s image
PHOTO: EXPRESS
ISLAMABAD:
The counsel for Justice Shaukat Aziz Siddiqui of the Islamabad High Court (IHC) has contended that in-camera proceedings of misconduct against judges stigmatise their reputation.
The argument came on Monday as a five-judge bench of the Supreme Court, headed by Justice Azmat Saeed Sheikh, resumed hearing of constitutional petitions filed by Justice Siddiqui and Justice Farukh Irfan of the Lahore High Court (LHC), seeking open trial before the Supreme Judicial Council (SJC).
Last year on May 18, the SJC had rejected IHC judge’s plea seeking his open trial. Later, the high court judge challenged the council’s order through a constitutional petition.
Makhdoom Ali Khan, while representing Justice Siddiqui, debated that public interest and the interest of the judge demanded that the proceedings before the council against the conduct of a judge should be held in the open because “the judge is stigmatised for life, loses his pension benefits and his family remains affected for generations”.
The counsel also referred to the Supreme Court’s judgment of 2010, under then chief justice Iftikhar Muhammad Chaudhry, in which the court had held that the proceedings before the SJC were not a trial. However, he added, it left open the question whether such proceedings were to be conducted in the open or in-camera.
Khan also stated that Article 209(5)(6) of the Constitution is clear about the SJC proceedings that they could not commence until the council, prime facie, was of the view that the judge was guilty of misconduct. Similarly, he added, the SJC could not recommend the removal of the judge unless it came to the conclusion that the judge was guilty of misconduct.
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The counsel highlighted the judgments in the Al-Jehad, Malik Asad Ali and Munir Bhatti case to establish the fact that the President could not refuse to follow the recommendations made by the SJC about the fate of a judge facing reference.
He said that refusal to follow such a recommendation would be unconstitutional, and “recommendation by the SJC is, in fact, an order for removal of the judge”. In this case, he added, the judge had no right or review, appeal or revision against such a recommendation.
The public and press would always assume that the judge was corrupt if the proceedings were conducted in a secretive manner, Khan argued.
He said in-camera proceedings before the SJC tarnished the image of a judge. “In a democratic society, the public has the right to know why a high constitutional functionality is being proceeded against,” he said, adding that the judge had the right to defend himself in open court.
Khan stated that parties like the Attorney General office demanding in-camera proceedings “fall within one of the exceptions” as the burden of proving their case lied with them.
“It is for this reason that it has been repeatedly held that public inquiry is a rule and the in-camera proceedings are an exception to the rule,” he said. “Generally the recognised exception to the rule of open trial is the protection of the victim, like in rape cases, or the protection of someone’s reputation… the minor or a lunatic.”
According to the counsel, another exception is where the nature of proceedings like invention or patent requires secrecy or when national security or national secrets are involved.
“An inquiry against a judge who is himself demanding public hearing does not fall in any exceptions,” said the counsel.
Moreover, both amici curie Muneer A Malik and Shahid Hamid have also supported the open trial of the judges.
According to Malik, three big issues are at stake in the matter – the first pertaining to the fundamental rights of the petitioner judge; the second to the fundamental rights of the people at large to access to justice; and the third to the independence of judiciary as a collective institution.
The counsel cited the first amendment case from the US history and said the US reached the conclusion that shielding judges through confidentiality would be at best counterproductive.
He also cited Justice Felix Frankfurter and argued that the courts were neither a mystical entity nor an anointed priest apart from the community and therefore subject to criticism.
The hearing of case is adjourned till March 28.
The counsel for Justice Shaukat Aziz Siddiqui of the Islamabad High Court (IHC) has contended that in-camera proceedings of misconduct against judges stigmatise their reputation.
The argument came on Monday as a five-judge bench of the Supreme Court, headed by Justice Azmat Saeed Sheikh, resumed hearing of constitutional petitions filed by Justice Siddiqui and Justice Farukh Irfan of the Lahore High Court (LHC), seeking open trial before the Supreme Judicial Council (SJC).
Last year on May 18, the SJC had rejected IHC judge’s plea seeking his open trial. Later, the high court judge challenged the council’s order through a constitutional petition.
Makhdoom Ali Khan, while representing Justice Siddiqui, debated that public interest and the interest of the judge demanded that the proceedings before the council against the conduct of a judge should be held in the open because “the judge is stigmatised for life, loses his pension benefits and his family remains affected for generations”.
The counsel also referred to the Supreme Court’s judgment of 2010, under then chief justice Iftikhar Muhammad Chaudhry, in which the court had held that the proceedings before the SJC were not a trial. However, he added, it left open the question whether such proceedings were to be conducted in the open or in-camera.
Khan also stated that Article 209(5)(6) of the Constitution is clear about the SJC proceedings that they could not commence until the council, prime facie, was of the view that the judge was guilty of misconduct. Similarly, he added, the SJC could not recommend the removal of the judge unless it came to the conclusion that the judge was guilty of misconduct.
SJC action: IHC judge disputes ‘vague’ show-cause notice
The counsel highlighted the judgments in the Al-Jehad, Malik Asad Ali and Munir Bhatti case to establish the fact that the President could not refuse to follow the recommendations made by the SJC about the fate of a judge facing reference.
He said that refusal to follow such a recommendation would be unconstitutional, and “recommendation by the SJC is, in fact, an order for removal of the judge”. In this case, he added, the judge had no right or review, appeal or revision against such a recommendation.
The public and press would always assume that the judge was corrupt if the proceedings were conducted in a secretive manner, Khan argued.
He said in-camera proceedings before the SJC tarnished the image of a judge. “In a democratic society, the public has the right to know why a high constitutional functionality is being proceeded against,” he said, adding that the judge had the right to defend himself in open court.
Khan stated that parties like the Attorney General office demanding in-camera proceedings “fall within one of the exceptions” as the burden of proving their case lied with them.
“It is for this reason that it has been repeatedly held that public inquiry is a rule and the in-camera proceedings are an exception to the rule,” he said. “Generally the recognised exception to the rule of open trial is the protection of the victim, like in rape cases, or the protection of someone’s reputation… the minor or a lunatic.”
According to the counsel, another exception is where the nature of proceedings like invention or patent requires secrecy or when national security or national secrets are involved.
“An inquiry against a judge who is himself demanding public hearing does not fall in any exceptions,” said the counsel.
Moreover, both amici curie Muneer A Malik and Shahid Hamid have also supported the open trial of the judges.
According to Malik, three big issues are at stake in the matter – the first pertaining to the fundamental rights of the petitioner judge; the second to the fundamental rights of the people at large to access to justice; and the third to the independence of judiciary as a collective institution.
The counsel cited the first amendment case from the US history and said the US reached the conclusion that shielding judges through confidentiality would be at best counterproductive.
He also cited Justice Felix Frankfurter and argued that the courts were neither a mystical entity nor an anointed priest apart from the community and therefore subject to criticism.
The hearing of case is adjourned till March 28.