March 10, 2023
By Rehan Piracha
The Pakistan Bar Council on Friday submitted a complaint of misconduct against Justice Mazahar Ali Naqvi to the Supreme Judicial Council (SJC), seeking a thorough probe into the alleged audio leaks attributed to the Supreme Court judge.
The complaint was filed with the office of the Supreme Judicial Council on behalf of Pakistan Bar Council Vice Chairman Haroon-ur-Rashid and Executive Committee Chairman Hassan Raza Pasha. It marks the first time a superior bar has approached the SJC for the removal of an SC judge.
Last month, the council announced that it would move a reference against the judge after clips of a recorded phone conversation of former Punjab chief minister Pervaiz Elahi about the fixation of a case before a particular bench or judge became viral on social media.
In the complaint, the Pakistan Bar Council stated that it ‘being an apex body of the legal fraternity is imbued with the responsibilities to uphold the rule of law and stand for dispensation of justice to every citizen through an independent judiciary’.
“Notwithstanding that the superior judiciary is already under criticism, “the audio leaks” attributed to the respondent may have not pricked the conscience of the respondent judge but the Pakistan Bar Council has taken the matter with great concern for the sake of respect and dignity of the superior judiciary of Pakistan,” reads the complaint, a copy of which is available with Voicepk.net.
The PBC sought an inquiry under Section 5(1) of the Supreme Judicial Council Procedure of Enquiry 2005 read with Article 209 of the Constitution. “The attribution of such audio leaks to the aforenamed respondent judge requires the Supreme Judicial Council of Pakistan to hold an inquiry,” the PBC said in its complaint. Besides, the PBC also requested the Supreme Judicial Council to initiate proceedings for investigating media reports of the alleged accumulation of assets made out against the judge.
The conduct exhibited and displayed by the respondent judge in audio leaks is a clear violation of Article III of the Code of Conduct of the Supreme Court judges, the PBC complaint said.
In the complaint, the Pakistan Bar Council accused Chief Justice of Pakistan Umar Ata Bandial of protecting the SC judge.
“It is most unfortunate that Hon’ble Chief Justice of Pakistan instead of protecting the honour of the Judiciary, protecting the Respondent Judge unjustifiably as serious allegations have been levelled against the Respondent Judge, which requires a thorough probe under Article 209 of the Constitution.”
Seeking an inquiry over the allegations against the judge, the PBC said a final finding shall ‘earn greater confidence of public and legal fraternity in the institution of the superior judiciary.
The PBC complaint of misconduct is the third such reference against Supreme Court Justice Mazahar Ali Akbar Naqvi that has been filed with the Supreme Judicial Council. Earlier, the Pakistan Muslim League-Nawaz and Mian Dawood, a Lahore-based lawyer, filed complaints against the apex court based on the alleged audio leaks.
Procedure of enquiry
According to the Supreme Judicial Council Procedure of Enquiry 2005, any member of the public or any of its Members or the Secretary may bring to the notice of the SJC information alleging the incapacity or misconduct of a judge.
Once the SJC receives the information, it is presented to the Chief Justice of Pakistan, who is the chairperson of the apex body. The chairperson can refer the information to any fellow member of the SJC for opinion over its sufficiency or otherwise. If the Council is satisfied that the information prima facie discloses sufficient material for an enquiry, it shall proceed to consider it.
The member, to whom the SJC chairperson has referred the information, will ascertain if the information discloses specific particulars of misconduct, and provides factual details necessary to form a prima facie opinion in respect of the guilt of the Judge. If the member forms an opinion that the information does reveal sufficient material to commence an enquiry, he shall inform the SJC accordingly. In case, the member comes to a conclusion that the information is false, frivolous, concocted or untrue, he shall inform the council accordingly and may recommend action against the person who initiated the information.
Initiation of enquiry
The SJC chairperson may call the meeting of council for discussion and enquiry into the information received. If the council is of the view that before forming an opinion, it should also hear the judge under enquiry, it shall require the said judge to present himself before the Council. It shall provide him with the information and material received against him. The council can also seek more information before forming any opinioncan. It can also seek the attendance of the person who has provided the information, for enquiry into any aspect of the information provided.
Notice to judge
If the Council decides to proceed against a judge, a show cause notice shall be issued to him along with supporting material calling upon him to explain his conduct within 14 days. On receipt of a reply from the judge, the council shall convene its meeting to proceed further with the matter.
The Attorney-General for Pakistan and in his absence a senior counsel shall conduct a reference against the judge. In case of a difference of opinion, the reference will be decided on the basis of the majority opinion of the members.
If the council concludes that the judge concerned has been guilty of misconduct or incapacitated in the performance of his duties, the chairperson shall communicate his views in a report to the President. The proceedings of the Council shall be conducted in camera and shall not be open to the public. Only the findings of the proceedings shall be allowed to be reported.
Apart from Chief Justice Umar Ata Bandial, the SJC comprises Justice Qazi Faez Isa, Justice Sardar Tariq Masood, Sindh High Court Chief Justice Ahmed Ali Sheikh, and Peshawar High Court Chief Justice Qaiser Rasheed Khan. Lahore High Court Chief Justice Muhammad Ameer Bhatti will replace Justice Qaiser Rasheed Khan on the SJC upon PHC CJ’s retirement on March 30.