Justice Naqvi seeks CJP’s recusal from SJC

ISLAMABAD:

Justice Sayyed Mazahar Ali Akbar Naqvi of the apex court has sought the recusal of three members of the Supreme Judicial Council (SJC) from hearing the misconduct complaints against him – namely Chief Justice of Pakistan Qazi Faez Isa, Justice Sardar Tariq Masood and Naeem Akhtar Afghan – on several grounds including “bias”.

In his preliminary reply to a show-cause notice issued to him by the SJC on October 28, 2023, Justice Naqvi raised objections over the participation of the three members of the body but wrote nothing about the misconduct complaints against him.

Justice Naqvi contended that the proceedings against him were politically motivated and lack legality, propriety and transparency.

"The interests of justice, the due process of law and the requirements of natural justice dictate that no further proceedings of the SJC with regard to the so-called complaints against me be presided over or participated in by Mr Chief Justice Qazi Faez Isa, Mr Justice Sardar Tariq Masood and Mr Justice Naeem Akhtar Afghan,” he argued in his response.
He pointed out that such action would also not be unprecedented.

Justice Naqvi noted that during the hearing of constitutional petitions challenging the reference against Justice Isa, objections were raised against the presence of Justice Ijazul Ahsan and Justice Masood on the bench hearing them.

"Without accepting the objections, both learned judges, in the interest of propriety, recused themselves from the bench," wrote the judge in his 18-page preliminary reply submitted to the SJC.

Justice Naqvi maintained that the three senior judges ought not to hear the complaints against him in the “interest of propriety, justice and fairness”.

"Their participation in the proceedings resulting in a show-cause notice being issued to me taints those proceedings, inter alia, with bias and makes all orders passed in such proceedings as being without lawful authority and of no legal effect," he further wrote.

Justice Naqvi stated in his reply that on March 4, 2020, CJP Isa, as a member of the Judicial Commission of Pakistan (JCP), opposed his nomination as a judge of the apex court.

"It was also reported that Mr Justice Qazi Faez Isa wrote a detailed dissenting note raising objections, inter alia, in respect of certain judgments of mine as a judge of the Lahore High Court, in particular the judgment in the case of late retired General [Pervez] Musharraf, wherein a full bench of the Lahore High Court presided by me set aside the judgment of the special tribunal, my income tax returns and my assets declaration," it continued.

The SC judge referred to a request he had filed with the JCP secretary for the provision of minutes of the meeting held by the commission on March 4, 2020 as well as CJP Isa’s dissenting note.

According to Justice Naqvi, reminders were sent to the JCP secretary on November 4 and November 6, 2023, following which his request was declined on November 7.

The secretary informed the SC judge that the JCP proceedings were held in-camera and that was why the minutes of its huddle could not be provided.

“"It is submitted that [the] denial of information which directly and materially affects my case before the SJC is in violation of my fundamental rights [to a] fair trial, due process and access to information,” the judge added.

Justice Naqvi further wrote that it was “curious” that while it was claimed that the JCP proceedings were confidential and its minutes could not be handed over to him, but a press release was issued to the public at large informing about the SJC proceedings and orders passed therein “subjecting him to a media trial” and “causing serious prejudice” to him.

He continued that he repeated his request for the minutes of the JCP’s March 4, 2020 huddle and CJP Isa’s dissenting note, writing to the secretary that "otherwise serious prejudice shall be caused to me".

Read Justice Naqvi's case brings judicial politics into focus

Justice Naqvi further stated in his reply to the SJC that on April 3, 2023, Justice Isa and Justice Masood wrote to then CJP and head of the SJC, Umar Ata Bandial, to proceed on the complaints against him without any further delay.

"This letter was also copied to me. In response thereof, on April 19, 2023, I submitted that seeking expeditious disposal of the complaints against me without even mentioning the complaints pending against other judges established the bias of the two hon’ble judges," he added.

According to Justice Naqvi, nine out of the 10 complaints against him refer to and rely on his alleged audio leaks. He argued that the authenticity of those audio leaks had never been established.

“It is a matter of record that pursuant to SRO 596(I)/2023 dated May 19, 2023 issued under the Pakistan Commissions of Inquiry Act, 2017, an inquiry commission was constituted by the federal government, inter alia, to inquire into the authenticity, correctness and veracity of the alleged audio leaks.

The judge noted that Justice Isa was appointed as the chairman of the inquiry commission and Justice Afghan, also a member of the SJC, was appointed as its member.

He wrote that the commission – comprising Justice Isa, Justice Afghan and Islamabad High Court Chief Justice Aamer Farooq -- began its proceedings on May 22, 2023.

“Subsequently, the Supreme Court of Pakistan by order dated May 26, 2023 suspended the operation of the SRO and stayed the proceedings of the inquiry commission. The proceedings are sub judice,” he pointed out.

Justice Naqvi stated that the same alleged audio leaks, which were referred to the inquiry commission, were the subject matter of the complaints against him before the SJC.

About Justice Masood, the judge maintained that the former had already expressed an opinion against him and was hence disqualified from hearing the complaints as an SJC member.

"First, the letters dated April 03, 2023 and April 26, 2023 … co-authored by Mr Justice Sardar Tariq Masood establish that he has already formed a view in the matter,” he contended.

Justice Naqvi continued that secondly, Justice Masood took three months and 27 days in giving his opinion on the complaints.

“As per press reports, the complaints were referred by the then Chief Justice of Pakistan and Chairman of SJC, Mr Justice Umar Ata Bandial to Mr Justice Sardar Tariq Masood for his opinion on May 29, 2023. The opinion, however, was submitted on September 25, 2023 [to incumbent SCJ chief CJP Isa],” he added.

Read more IHC grills govt over veracity of audio leaks

The SC judge highlighted that the opinion was submitted to the SCJ chief only after Justice Umar Ata Bandial had retired as the CJP.

“It is clear from the chronology of events that the opinion was deliberately delayed till the composition of the SJC had changed after retirement of Mr Justice Umar Ata Bandial,” Justice Naqvi argued.

"Further, the submission of the report was also leaked to the press and became a subject of press comment," he continued.

The judge stated that Justice Masood had used derogatory language against him and disclosed the outcome of the SJC proceedings at the oath-taking ceremony of Justice Irfan Saadat Khan.

Interestingly, Justice Naqvi’s alleged incident about Justice Masood using derogatory language against him was not reported by any news outlet and only rumours were spread about it on social media.

Moreover, the SC judge wrote in his reply that Justice Masood had also filed a complaint against him before the SJC.

"In view of the above, in the interest of propriety, justice and fairness, Mr Justice Sardar Tariq Masood ought not to hear the complaints against me,” Justice Naqvi contended.

(With input from Jahanzeb Abbasi in Islamabad)