Removal of Justice Shaukat and article 209

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By Saad Rasool
The removal of Justice Shaukat Siddiqui, of the honorable Islamabad High Court, under Article 209 of the Constitution, does not come as a surprise to majority of those familiar with the specifics of the case. In fact, even before his fateful speech, there were numerous allegations against Justice Siddiqui, rumoured to be sufficient cause for his removal from the bench, under Article 209 of the Constitution.

However, now that the decision has been made – even amidst partisan political chatter surrounding this issue – it is important to briefly review this grave constitutional turn of events, and its consequences for the larger debate about judicial accountability.

Briefly stated, on 21st July, 2018, Justice Siddiqui delivered a speech before the Rawalpindi District Bar Association, wherein he levelled serious allegations concerning interference of the Inter-Services Intelligence into the functioning of our judicial system. His allegation, brazen and boorish in nature, implied that the ISI was involved in influencing the workings of the Accountability Court as well as the honourable Islamabad High Court, for the purposes of ensuring that Nawaz Sharif gets convicted, and remains incarcerated during the electoral process. As a video recording of his speech went viral on social and electronic media, the ISPR (on behalf of the ISI) issued a strong statement of condemnation against the judge’s remarks, and requested the honourable Supreme Court to “initiate appropriate process to ascertain the veracity of the allegations” made by Justice Siddiqui.

Simultaneously, on 22nd of July, 2018, Justice Siddiqui also requested the honourable Chief Justice (who also serves as the Chairman of Supreme Judicial Council) to constitute a commission for probing “the authenticity and truthfulness of presented facts”.

As a result, the honourable Chief Justice of Pakistan ordered the Chief Justice of Islamabad High Court to comment, in writing, on the veracity of the allegations made by Justice Siddiqui, and to obtain material or evidence (from Justice Siddiqui or otherwise) concerning the contents of Justice Siddiqui’s speech.

In response, through response dated 29th July, 2018, the Chief Justice of IHC, Justice Kasi, categorically denied the allegations levelled against him by Justice Siddiqui, and also informed the honourable Chief Justice that, despite a written inquiry, “no reply has so far been received” from Justice Siddiqui in support of his allegations. Specifically, CJ Kasi clarified that “no member of the agency/ISI had ever approached me or exerted any pressure for extending assurance for keeping the ex-premier behind bars till July 25, election day.”

Consequently, on 30th July, 2018, the Supreme Judicial Council formally decided to proceed with a reference against Justice Siddiqui, under Article 209 of the Constitution.

It is pertinent, here, to briefly review the relevant constitutional provision. Article 209 of the Constitution constitutes a “Supreme Judicial Council” (consisting of three senior judges of the SC and two “senior most Chief Justices of High Courts”). Article 209(6) of the Constitution empowers the Supreme Judicial Council to recommend the removal of any Judge who is “incapable of performing the duties of his office or has been guilty of misconduct”.

To this end, pertinently, the Constitution does not define what constitutes “misconduct”, for the purposes of Article 209. However, the Supreme Judicial Council Procedure Of Inquiry, 2005, framed by the Supreme Judicial Council for “effective performance of functions vested in it under Article 209”, does shed some light in this regard. Specifically, Rule 3(l) of the 2005 Rules stipulates that “misconduct” includes “(i) conduct unbecoming of a Judge”; or (ii) conduct that “is in disregard of the Code of Conduct issued under Article 209(8) of the Constitution of Islamic Republic of Pakistan”; or (iii) conduct that “is found to be inefficient or has ceased to be efficient.”

Within these parameters, the Supreme Judicial Council proceeded to consider and decide the reference against Justice Siddiqui, per the requirements of due process, for conduct that is “unbecoming of a Judge” and is in violation of the judicial code of conduct. For this purpose, Justice Siddiqui was issued a show-cause notice (on 31st July), and was allowed to submit a detailed reply (on 15th August) as well as additional response (on 21st August). Unfortunately for him, Justice Siddiqui could not produce a single shred of admissible proof or evidence to support his outlandish allegations. In fact, in the end, Justice Siddiqui had to resort to adopting the defence that being a “sworn Justice of the Honourable High Court of Islamabad”, his statements ought to be taken as “sufficient proof of the allegations”.

In response, on 1st October, the Attorney General made his submissions before the Supreme Judicial Council, emphasizing that no proof (whatsoever) had been provided by Justice Siddiqui in support of his allegations which, as such, fall foul of the parameters set out under Article 209 of the Constitution. Thereafter, the Supreme Judicial Council deliberated the matter in detail, and emphasized that the fundamental question before the Council was to inquire into the propriety of Justice Siddiqui’s conduct in making the public speech; his motives for making the speech, however, did not fall within the ambit of the inquiry.

And finally, on 11th October, after thorough deliberation, members of the Supreme Judicial Council unanimously opined that Justice Siddiqui “had displayed conduct unbecoming a Judge of the High Court and was, thus, guilty of misconduct and he is, therefore, liable to be removed from his office under Article 209(6) of the constitution of Islamic Republic of Pakistan, 1973.”

Justice Siddiqui’s removal from office was less a question about the veracity of the allegations levelled, and more a result of his “conduct” of levelling such damning allegations (without proof), through a public forum. And there is virtually no cavil or exception that can be made with this contention. Imagine the alternative – a judicial system in which each honourable judge voices his or her grievances (vis-à-vis the system) through a televised press-conference which undermines the entire edifice of our judicial system. Can that ever be tenable in our constitutional democracy? Is there any system in the world – anywhere! – where the judges are allowed to make such speeches? What would happen to the integrity of our judicial system, if individual/subjective grievances of judges (which are usually addressed through administrative measures) are brought out and flashed as breaking news?

Over the past decade or so – especially since the Iftikhar Chaudhary years – the honourable Courts have faced tremendous criticism for having kept Article 209 (and the resulting process of judicial accountability) largely inert. Successive Chief Justices have faced criticism for imposing accountability in the ranks of the executive, while avoiding judicial “accountability” through Article 209 of the Constitution. It is time for the honourable Court, and its member judges, to take the endeavour of institutional accountability to its logical conclusion, by hearing and deciding the pending references, under Article 209. And not just against judges who are accused of wrong-doing, but also against those whose (judicial) performance warrants a review of their constitutionally protected position on the bench. Such an exercise will not only result in holding the honourable judges to a higher standard or judicial conduct and performance, but will also inspire confidence in the functioning of our judicial system.

(The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. saad@post.harvard.edu)