Daily Times

Our Constitution envisages a procedure for the removal of the judge of the Supreme Court or of a High Court. The Supreme Judicial Council, constituted pursuant to Article 209, of the Constitution is entrusted to inquire into whether a judicial officer is capable of performing duties of the office, by reason of physical or mental incapacity or if the judicial officer is guilty of misconduct.  The Council is composed of the Chief Justice of Pakistan, two senior judges after the Chief Justice in the Supreme Court and the two senior-most judges of provincial High Courts.

Essentially, the Council conducts administrative proceedings regarding conduct or capacity of a judge; who is to be judged by his own peers. Proceedings are in the nature of fact finding inquiry only with no power conferred to pronounce the removal on basis of conduct or capacity itself. It can only make such recommendations to the President. The Council has created waves recently by recommending removal of a senior judge of the Islamabad High Court judge to the President. Siddiqui Sahib is only the second judge in the history to have been removed on recommendations made by the Council.  In the matter of The President-Referring Authority v Mr Justice Shaukat Ali (PLD 1971 SC 585); a reference was filed under the then Article 128 of the Constitution of 1962 read with Provisional Constitution Order of 1969, that culminated in the removal of Mr Shaukat Ali.

The Report of the Council recommending removal of Mr Siddiqui has been authored by Justice Asif Saeed Khosa. Like his opinions from the Bench, the Report is lucid and persuasive. The issue is framed straight away: “At a time when many inquiries under Article 209 of the Constitution were pending against him at different stages before the Supreme Judicial Council, Mr Shaukat Aziz Siddiqui… addressed a meeting of District Bar Association, Rawalpindi on 21.07.2018. . . .” The Report chronicles the entire events surrounding the reference decided by the Council, and candidly reproduces the defence of Siddiqui Sahib.

The question the Council had to answer was not whether there were merits in the allegations levelled by Siddiqui Sahib, mostly unsubstantiated at all material times, about the superior judiciary, both past and present, and encroaching role of the military in affairs of the coordinate branches; but whether he violated the Code of Conduct for Judges of the Supreme Court and the High Courts by addressing the Bar at the time he did or by addressing the Bar in such manner; Siddiqui Sahib demonstrated a conduct unbecoming of a judge of the High Court.

The current Supreme Court, it appears, led by the honourable Chief Justice has delivered on its promise of judicial accountability. On issue of judicial accountability, it is still miles to go before we sleep. But this development in itself, needs to be acknowledged and appreciated by the Bar across the country

“A Judge, that too of a High Court, is expected to be quite circumspect and careful in his remarks about other judges and judicial verdicts…” writes Justice Khosa as he critiques the conduct of Mr Siddiqui. The Report while dismissing the sweeping allegations concerning the superior Courts and alleged outside influences further notes: “Such recklessness and irresponsible conduct of a judge of a High Court is not countenanced by any standard of judicial proprietary and the Code of Conduct in this country is no exception…” The conclusion reached by the Council on the issue does not strike as a surprise to legal practitioners across the country.

The current Supreme Court, it appears, led by the honourable Chief Justice has delivered on its promise of judicial accountability. On issue of judicial accountability, it is still miles to go before we sleep. But this development in itself, needs to be acknowledged and appreciated by the Bar across the country.  Response from the Islamabad Bar Council calling for a strike on 15.10.2018 (unsuccessfully) is both misplaced and regrettable. We expect better leadership from the Bar Council.

I always found Siddiqui Sahib quite magnanimous and appreciative, especially, of the young lawyers. I never saw him misbehave, grow impatient or snub young lawyers appearing before him. Despite the factors that drove him, he could be modest as well. Once, he was hearing the challenges thrown at promotions of senior civil servants. Federation was represented by the brilliant Harvard alum, Mr AfnanKundi, then an Additional Attorney General for Pakistan. I was assisting him at the time.  Siddiqui Sahib candidly admitted that employment law was not his forte. This, after he had heard the lengthy and nuanced submissions from the Federation, on the maintainability of the petitions. But, he added, not him nor many could argue like Mr Kundi — in what he thought was a weak case of Federation. Of course, the Federation lost! Never mind the outcome, the conduct of the judge in the courtroom is equally significant which is independent of his or her acumen across the legal spectrum. In so far as Islamabad High Court is concerned, I think his conduct with young lawyers was exemplary. I understand, others may have had different experiences. Regardless, I wish him and his family well!

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, October 23^rd 2018.