Justice Sayyed Mazahar Ali Akbar Naqvi, one of the top court justices sought recusal of three members of Supreme Judicial Council (SJC) including Chief Justice of Pakistan Justice Qazi Faez Isa as the panel is hearing misconduct complaints filed against Justice Naqvi.
In his preliminary 18 pages reply to a show-cause notice issued to him by the SJC on October 28, 2023, Justice Naqvi raised objections on the participation of three judicial members, namely CJP Isa, Justice Sardar Tariq and Justice Naeem Afghan, and sought their recusal based on “bias” and other grounds.
Justice Naqvi has contended that the proceedings against him are 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.
“Such action will also not be unprecedented. During the hearing of constitutional petitions challenging the Reference against Mr Justice Qazi Faez Isa objections were raised against Mr. Justice Ijaz ul Ahsan and Mr Justice Sardar Tariq Masood (who were members of the learned Bench hearing the petitions). “Without accepting the objections, both learned Judges, in the interest of propriety, recused themselves from the Bench,” wrote Justice Naqvi in his 18-page preliminary reply submitted before the SJC.
Justice Naqvi asserted 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 wrote.
Justice Naqvi further stated that CJP Isa had earlier on March 4, 2020, 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 Fazi 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 General Pervaiz 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,” states the written reply.
Justice Naqvi further referred to a request he filed with the secretary of the JCP for the provision of minutes of the meeting held by the commission on March 4, 2020 as well as the dissenting note given by CJP Isa. 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 Justice Naqvi that proceedings of the JCP are held in-camera and therefore, minutes of the meeting could not be provided. “It is submitted that denial of information which directly and materially affects my case before the SJC is in violation of my Fundamental Rights of fair trial, due process and access to information.
“Further, it is curious that while it is claimed that the JCP proceedings are confidential and its minutes cannot be made available to me a press release was issued to the public at large informing about the SJC proceedings and orders passed therein subjecting me to a media trial and causing serious prejudice to me,” wrote Justice Naqvi.
He added that he repeated his request for the aforementioned materials, writing to the secretary that “otherwise serious prejudice shall be caused to me”. In his written reply to the SJC, Justice Naqvi further stated that on April 3, 2023, CJP Isa and Justice Masood wrote to then CJP and chairperson 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,” wrote Justice Naqvi. According to Justice Naqvi, nine out of the 10 complaints against him refer to and rely on his alleged audio leaks.
“The authenticity of those audio leaks has never been established. It is a matter of record that pursuant to S.R.O. 596(I)/2023 dated May 19, 2023 (“SRO”) 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.
“Mr. Justice Qazi Faez Isa was appointed as the Chairman of the inquiry commission. Further, Mr. Justice Naeem Akhtar Afghan (who is also a member of the SJC) was appointed as a member of the inquiry commission. The proceedings were commenced on May 22, 2023 by Mr. Justice Qazi Faez Isa and Mr. Justice Naeem Akhtar Afghan along with Mr. Justice Aamer Farooq.
“An order was passed on the same date. 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.
“The same alleged audio leaks which were referred to the inquiry commission are subject matter of the complaints against me before SJC,” wrote Justice Naqvi. He submitted that “in the interest of justice and fairness”, CJP Isa and Justice Akhtar should recuse themselves from hearing the complaints against him as chairperson and member of the SJC, respectively.
With regards to Justice Masood, Justice Naqvi submitted that the former had already expressed an opinion against him and was hence disqualified from hearing those complaints as SJC member.
“First, the letters dated April 03, 2023 and April 26, 2023 (referred above) co-authored by Mr. Justice Sardar Tariq Masood establish that he has already formed a view in the matter. “Second, as noted above, Mr. Justice Sardar Tariq Masood took 3 months and 27 days to give 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.
“It was submitted only after Mr. Justice Umar Ata Bandial had retired as Chief Justice of Pakistan. 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. “Further, the submission of the Report was also leaked to the press and became a subject of press comment,” contended Justice Naqvi.
He further stated that as per media reports 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. Moreover, wrote Justice Naqvi, Justice Masood also has 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. His 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,” concluded Justice Naqvi.
