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The Supreme Court on Tuesday rejected Justice Sayyed Mazahar Ali Akbar Naqvi’s request to stay proceedings in the Supreme Judicial Council (SJC) against him over alleged misconduct.
The decision was taken as a three-member bench — comprising Justice Jamal Khan Mandokhail, Justice Aminuddin Khan and Justice Musarrat Hilali — took up a set of petitions challenging the issuance of show-cause notice to Justice Naqvi.
In October last year, the SJC had issued a show-cause notice to Justice Naqvi in connection with 10 complaints lodged against him and directed the judge to submit a reply within two weeks.
In his response, Justice Naqvi had raised issues with the SJC inquiry against him and called for Chief Justice of Pakistan (CJP) Qazi Faez Isa and two other judges to recuse themselves from the matter.
On Nov 20, Justice Naqvi contested the SJC proceedings against him and also challenged the show-cause notice issued to him by the council, stating the initiation of proceedings was coram non-judice and without lawful authority.
Subsequently, the SJC had issued a fresh show-cause notice to Justice Naqvi on Nov 22, with a direction to come up with his defence by filing a reply within a fortnight.
On December 4, Justice Naqvi had again approached the apex court and expressed his intent to pursue the constitutional petition he had moved earlier seeking to quash the revised show-cause notice issued by the SJC.
Two days later, Justice Naqvi had invited the attention of the SC committee comprising three senior-most judges to the silence over his petitions challenging the issuance of the show-cause notice (SCN) despite the lapse of time as stipulated in the Supreme Court (Practice & Procedure) Act, 2023.
Justice Naqvi had also written a separate letter to the SJC secretary, asking the latter to furnish a number of documents without which, the judge said, he would not be in a position to prepare his reply to the show-cause notice within time.
On December 15, the SJC, in an open hearing, had given two weeks to the top court judge to respond to the misconduct allegations and directed him to submit a reply to the show-cause notice by January 1.
At the previous hearing, Justice Naqvi withdrew his earlier objection to the three-judge bench hearing his petition that challenged the show-cause notice’s issuance.
Makhdoom Ali Khan, the counsel for Justice Naqvi, had told the apex court that the judge had not raised any objection to the jurisdiction or composition of the bench but rather its constitution since it was not properly formed by a committee of three senior judges that constitute benches, and he would prefer to advance his arguments purely on merit.
The hearing
At the outset of the hearing today, Justice Naqvi’s counsel said Article 209 (Supreme Judicial Council) of the Constitution gave protection to judges. The lawyer advised the bench to look into the said law and also the SJC Inquiry Rules 2005.
“Under the rules, the role of a complainant against a judge is very limited,” he contended. “The president of the state or the SJC itself initiates proceedings against judges,” he added.
Here, Justice Mandokhail inquired if bar councils could file a complaint against a judge, highlighting that bar councils had also submitted requests during Justice Isa’s case.
“Justice Yahya Afridi had said that complaints against judges can be made by bar councils,” the judge added.
For his part, Makhdoom pointed out that the SJC had also dismissed 21 petitions on the day it decided to proceed ahead on the complaints filed against Justice Naqvi.
At this, Justice Khan said the matter was before the apex court now, adding that the court thought the complainants should be issued notices otherwise proceedings would not be able to proceed.
“How can we not listen to the stance of complainants when you are saying that the complaints are based on malice?” Justice Mandokhail asked, to which Makhdoom said the court had to protect its institution.
Justice Naqvi’s counsel went on to say that if the complainants were made parties to the case, applications under Article 184(3) — an inherent power of the Supreme Court to enforce fundamental rights as guaranteed under the Constitution — would be filed against all the complaints dismissed by the SJC.
Here, Justice Hilali asked if anonymous petitions against the judge were also heard to which Makhdoom replied in the negative. “There is no anonymous complaint against Justice Naqvi,” the lawyer said.
Subsequently, the apex court rejected Justice Naqvi’s request for an injunction on the SJC proceedings. Justice Mandokhail said the SJC was a constitutional body and the Supreme Court could not order it to do anything.
In his defence, Makhdoom recalled that the court had ordered a stay on the SJC proceedings in the case of former CJP Iftikhar Muhammad Chaudhry.
Justice Mandokhail asked what would happen if the Supreme Court granted the injunction and the SJC continued with the proceedings while Justice Khan said the court had to look at the case of the parties involved in the current matter.
The court subsequently ordered that the complainants against Justice Naqvi, including Mian Dawood, be made parties to the case and adjourned the proceedings indefinitely.
The SJC will next resume its proceedings against the judge on Jan 11 (Thursday).
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