The Islamabad Bar Association has recommended that the Supreme Court direct the federal government to appoint an inquiry commission to verify the allegations made by former Islamabad High Court (IHC) judge Shaukat Aziz Siddiqui regarding the manipulation of judicial proceedings by agencies in the Panama case.
As one of the petitioners in the Shaukat Aziz Siddiqui case, the Islamabad Bar Association, through its counsel Salahuddin Ahmed, has submitted written arguments to the apex court.
In the submissions, Ahmed opposed the idea of referring the matter of the former IHC judge back to the Supreme Judicial Council (SJC) for a fresh inquiry.
In the written submission, counsel Salahuddin Ahmed states, "This Court may direct the Federal Government to appoint a Commission of Inquiry headed by a Judge of this Court under the Commissions of Inquiry Act 2017 to inquire into the matter and ascertain the veracity or otherwise of the Respondent No.3’s allegations and make recommendations as to any action under law to be taken by appropriate bodies/forums against the Respondent No.3 or the Respondent Nos.4, 6 and 7 or any other person. This Court has, on numerous occasions, directed the formation of Commissions to ascertain facts/make recommendations/implement court directions."
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The bar also recommended that any inquiry to be conducted in relation to the allegations of Shaukat Aziz Siddiqui should be conducted by this court itself under its ample powers of Article 184 (3) read with Article 187 (1) of the Constitution and appropriate directions for further action may be passed thereafter.
"If it is considered undertaking the exercise directly before this Court is too time-consuming, this Court has explicit powers under Order 32 of the Supreme Court Rules 1980 (read with Order XXVI Rules 9 and 10 CPC) to issue commissions for investigation “for the purpose of elucidating any matter in dispute” and the commission’s report may thereafter be treated as evidence for the purpose of any further orders."
It is also submitted that in either case, the public interest requires that any preliminary determination of the veracity or otherwise of the allegations should not merely be for the purposes of establishing the historical record. Rather, to ensure deterrence in the future, the wrongdoer/s must be visited by appropriate proceedings and consequences.
“The solution does not lie, however, to send the matter for enquiry to the SJC – a forum that no longer enjoys any constitutional jurisdiction over the matter (and which, in any case, does not have the power to even give its opinion or pass any recommendations in relation to non-judicial officers alleged to be involved),” it added.
It is stated that if Shaukat Aziz Siddiqui's allegations of Lt. Gen. (R) Faiz Hameed and Brigadier (retd) Irfan Ramay are true, then they have prima facie, committed, "criminal contempt of court (obstructing or prejudicing the course of justice) within the meaning of section 2 (d), 3 and 6 of the Contempt of Court Ordinance 2003, offences under sections 162, 163, 166 and 186 of the Pakistan Penal Code. (As per section 161 PPC, the gratification mentioned in section 162 and 163 PPC need not necessarily be pecuniary in nature.”
Moreover, the term “public servant” defined under section 21 PPC includes any commissioned military officer and every judge.), perjury in their statement before this Court punishable under sections 191, 193 and 199 PPC, violated their Oath of Office under Schedule III to the Constitution and their applicable service rules, regulations and discipline.
Similarly, if Shaukat Aziz Siddiqui's allegations are true Justice (R) Anwar Kasi, has prima facie committed criminal contempt of court within the meaning of section 2 (d), 3 and 6 of the Contempt of Court Ordinance 2003, offences under sections 162, 166 and 186 of the PPC, perjury in his statement before this court punishable under section 191, 193 and 199 PPC, violated his oath of office under Schedule III to the Constitution.
On the other hand, if ex-IHC judge allegations are false, he has prima facie committed judicial contempt of court by bringing the judiciary in disrepute and scandalising a judge within the meaning of section 2 (c) and 3 of the Contempt of Court Ordinance 2003, perjury in his statement before this court punishable under section 191, 193 and 199 PPC, defamed, the respondents No.4, 6 and 7 and liable to both civil proceedings under the Defamation Ordinance 2002 and criminal proceedings under section 499 and 500 PPC.
The counsel submitted that the petitioners admit the nature of allegations made by Shaukat Aziz Siddiqui are such that they should not simply be left hanging in the air.
"There is a clear public importance in determining their truth or otherwise. However, the matter does not end there.
"If Respondent No.3 was telling the truth; public interest demands appropriate action be taken against the military and judicial officers who violated their respective constitutional oaths besides violating the law.
Similarly, if he was not telling the truth and has falsely maligned not only individual judicial and military officers but the judiciary as a whole, he should face further consequences prescribed under law (and not merely removal from service)"
The counsel states that in order to allow court martial proceedings against retired army officers, there is a specific legislative provision allowing the same if proceedings are commenced within six months of retirement. To bring a similar change in relation to superior court judges and the jurisdiction of the SJC, an amendment to the constitution would be necessary, says the written submission.
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