Sayed A.S. Shah, Ex-General Secretary, Canal View Cooperative Housing Society Limited, Lahore has filed three different references against honorable chief Justice of Pakistan Mr. Justice Umar Ata Bandial, Mr. Justice Ijaz ul Ahsan, and Mr. Justice Munib Akhtar in Supreme Judicial Council. Given below is the text of the complaint as revealed by the complainant.
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The undersigned Ex-General Secretary of Canal View Cooperative Housing Society Limited, Lahore considers it in the public interest to go public with regard to information submitted in early March 2023 separately regarding misconduct by their Lordships Mr. Justice Ijaz ul Ahsan, Mr. Justice Umar Ata Bandial (presently HCJP) and Mr. Justice Munib Akhtar. Their Lordships misconducted themselves in the course of purported suo moto proceedings in relation to the forensic audit of housing societies that was ordered earlier by another bench of the Supreme Court in an unconnected bail matter.
Ethical Misconduct brought to the notice of the Council includes (i) unleashing of Police for pursuing lawful legal remedy, (ii) intimidation, degradation and humiliation in open court and conversion of the Supreme Court to a private thana, (iii) falsification and fabrication of facts for creating pretext to frame-up innocent complainant, (iv) entertainment of secret considerations transforming the Supreme Court to a Gestapo outfit devoid of the characteristics of a judicial forum, (v) reduction of the august Supreme Court to a private undertaking and (vi) cover-up of the Order-under-Review. The complained against acts violate the Judge’s oath, the Code of Conduct and the traditional requirements of behavior expected of a Judge.
None of the cases of misconduct pertains to adjudication or the exercise of judicial discretion. No decision of the honourable Court has been assailed. All instances are of ethical misconduct based on underlying bias and bad faith and none is “merits-related”. Judicial misconduct has been reported upon with the intent to bring about a cleansing of the honourable Supreme Court and ensure its purity and honour.
The information brought to the notice of the Council conveys that the concerned honourable Judges have been running the honourable Supreme Court as a private partnership concern unshackled from the Constitution and the law rather than a judicial organ of the State anchored in the Constitution and committed to the Rule of Law. Their Lordship’s conduct leads one to conclude that everybody in the country is subject to the law except the Supreme Court. Differing from ordinary judicial misconduct, in the corporatized misconduct brought to the notice of the Council, the Orders of the honourable Supreme Court have the signatures and underpinnings of a fascist undertaking that strikes at the very heart of Constitutionalism and Constitutional morality as is evident from the sequence where the honourable Supreme Court, acting without jurisdiction, uses the Police for ensuring the early-morning presence of honourable people in Court, subjects them to insult and abuse in Court, completely dispenses with the notice of the case to be met and the opportunity to explain, gives no opportunity of hearing, falsifies and fabricates facts to incriminate innocent persons, takes coercive action on the basis of fanciful considerations secretly-held by it, prefers its own brand of instant justice over Constitutional Justice and axes Constitutionally-protected Civil Court proceedings and substitutes its own perverse and oppressive arrangement in place of what was to be the Civil Court’s reasoned and considered decision-on-the-merits, obliterates even the physical traces of the lis before the Civil Court, follows no rule, no law, no procedure, no norm, disregards propriety, remains wary to consider any fact, is shy throughout to adjudicate on the merits, has aversion to proceed in accordance with the Constitution and the law, proceeds without a cause of action, is not sure of the charge or grievance it holds against the Complainant for which it was proceeding against him and passes a perverse and oppressive Order without making findings of fact and setting forth reasons as required by law. Whereafter, even more sordid is the joining of hands to give the Court’s grisly Order a cover-up and complete protection against Review for the errors that mockingly float on its surface. The first casualty of the honourable Supreme Court’s fascist and wayward trajectory charted by their misconducting Lordships, is destined to be the Supremacy of the Constitution and the Rule of Law, with the greatest threat to them emanating from the Supreme Court itself. It is empirically clear that Constitutional effrontery is ingrained in the texture of their misconducting Lordships’ non-judicial temper. Unfaithfulness to the Constitution that is pronounced in the instant instances of misconduct, is inevitable to pervade the everyday Orders and Judgements of their misconducting Lordships albeit in form less stark but insidious to the extreme. The Council is therefore urged to cleanse the honourable Supreme Court of the malady that afflicts it for ensuring the survival and relevance of the Constitution and of the concept of the Rule of Law vis-à-vis the honourable Supreme Court as otherwise, with their misconducting Lordships of the Supreme Court leading the way in lawless conduct, there are all the portends for judicial anarchy, to no good effect on the purity, honour, integrity and credibility of the Judiciary, a principal concern of the Council.
The information furnished to the Council exhibits that their Lordships’ on-the-bench misconduct is gross and egregious, sustained and pervasive, rising in instances to the level of moral turpitude and judicial depravity, where they have compromised the integrity and credibility of their person as well as of the Court, rendering it a biased and partisan institution at war with citizens and the Constitution. In sum, their Lordships purposefully violated their oath, displayed conduct unbecoming of a Judge and violated express provisions of the Code of Conduct. The totality of their misconduct presents a compelling case against them. The information conveyed to the Council evidences that the honourable Judges were not crafted for the judicial function as they simply do not have the frame of mind, temperament and conditioning to adhere to and treat the Constitution with respect. The situation has come to such a sorry pass that the under question Judges may pass any damn Order under the sun for the achievement of their short-term ends with no restraint, including that of their conscience, operating upon him. Their Lordships are not committed to go straight in accordance with the Constitution and the law and will only wreak havoc.
The Council has been conveyed that in accordance with Article 209 of the Constitution, precedent and propriety, none of the three misconducting judges are to be part of the Council to hear, apart from their own respective case, the other two cases of misconduct as well, as all cases are based on the same facts and concern the same proceedings.
It is an admitted fact that the established practice of the Council has been to sweep information with regard to unscrupulous conduct of Judges under the carpet with there being hardly any case of on-the-bench misconduct brought to the fore all through the years. The HCJP is on record having said “If you talk about law, I will listen as a Judge, [but] if you talk about my Judges, you will have to face me”, which exposes the deliberate placement of Judges above the law.
It would be instructive to recall that the reference filed in respect of the then Chief Justice in October 2018 by 98 eminent members of the civil society did not pass through the procedural stages stipulated by the Procedure of Enquiry and secrecy was asserted all the while. At a belated stage, in March 2019, i.e. more than two months after the former chief justice’s retirement in January 2019, feigning innocence, the matter was labelled as infructuous and disposed of by the SJC! The Supreme Judicial Council Procedure of Enquiry 2005 prescribes for in camera “proceedings” that are not to be “open to public”. Where no proceedings take place there is no room for asserting secrecy. The handling of the matter was nothing but dishonesty plain and simple whereby protection was extended to his Lordship the Chief Justice at the expense of the credibility of the Judiciary. Had the Council not protected the Chief Justice then, all that is happening today would not have happened and the institutional legitimacy and credibility of the Supreme Court would have been standing tall. The Council is therefore urged to strike a balance between transparency and secrecy and create a wee bit of space for some openness in its working in the interest of the integrity and credibility of the Supreme Court and for upholding the Rule of Law.
The Council’s established practice of inaction against judicial misconduct has served to bolster and reassure the complained against Judges of their invincibility, so much so that to confer upon themselves the jurisdiction the Supreme Court does not have and to disregard and treat the Constitution with disdain and pass Orders that have no bearing to facts or the merits remains of no consequence for them and these Judges of the Supreme Court remain comfortable in the knowledge of their impunity.
The Council is urged not to, yet again extend protection against accountability to persons in the privileged position of Supreme Court judges and thereby give them a general licence to indulge in lawless conduct at the expense of the integrity and credibility of the Supreme Court. If the Supreme Court were to be converted to a private thana of a few Judges and Orders churned out without any restraint with Judges free to pass any damn Order under the sun wherein law, fact and merits are meaningless, this work could well be done without a Supreme Court being there.
Judicial developments at the apex since the submission of information of misconduct to the Council vindicates the stance therein that there’s a lot rotten in the state of Denmark specially as regards adherence to Constitutional norms and elementary propriety by the concerned Judges of the Supreme Court who can do nothing better than cock a snook at the Constitution and mock the imperative to uphold the Rule of Law.
So that grave wrongdoings are cast off the institutional face of the honourable Supreme Court and its honour and dignity remain untainted it is important that action is taken against the misconducting honourable Judges.
The Complainant as a stakeholder in the Rule of Law has made recourse to the Council. The Council is urged to process the information forthwith in accordance with the Procedure of Enquiry in complete disassociation with the Judges in question and the same be disposed of before the honourable Supreme Court undertakes any high-profile adjudicatory business. The misconduct brought to the notice of the Council and the resultant impairment of the integrity and credibility of the Supreme Court as an adjudicatory body are serious enough for regular adjudication by the Supreme Court to be suspended pending inquiry by the Council. Propriety demands that the concerned Judges should not be conducting any adjudication while their impartiality and judicial integrity remain under inquiry.
One of the recognized modes under the SJC Procedure of Enquiry, 2005 to bring information regarding judicial misconduct to the notice of the Council is through the Press. For good reason the Council is also addressed through these columns and its attention is re-drawn to the information submitted early last month regarding misconduct by their Lordships honourable Mr. Justice Ijaz ul Ahsan, honourable Mr. Justice Umar Ata Bandial (presently HCJ) and honourable Mr. Justice Munib Akhtar.
The instances of misconduct pointed out are so egregious and appalling for the purity, honour, integrity and credibility of the Supreme Court that the Council has the option to advise removal of their Lordships under Article 209(6) of the Constitution or else to proceed against the Complainant under the Procedure of Enquiry for furnishing false information. Any via media for protecting their Lordships is not a lawful and proper option for the Council in the circumstances and if done will be to the detriment of the purity, honour, integrity and credibility of the Supreme Court.
Their Lordships honourable Mr. Justice Umar Ata Bandial and honourable Mr. Justice Munib Akhtar et al., in their judgement in Justice Qazi Faez Isa v. The President of Pakistan and others, PLD 2022 SC 119, subscribe and accept that “Indeed, it is of vital importance that … Judges of the Superior Courts … remain answerable before their relevant forums to safeguard the integrity and credibility of their person as well as of their Court”. In view of this admitted position his Lordship honourable Mr. Justice Bandial (presently HCJP) and the other concerned honourable Judges are urged to facilitate the Council to proceed with the enquiry to safeguard the integrity and credibility of their person as well as of their Court by clearing the way by recusing forthwith from the Council.
In the hands of their misconducting Lordships, the Supreme Court did not live up to any of the three values of independence, integrity and impartiality crucial to public trust in the judiciary. Treatment in accordance with the law by the Supreme Court rather than remaining a right has become a privilege at the hands of their misconducting Lordships. At no juncture did the Court go straight. All through, the honourable Supreme Court did nothing that accorded with the Constitution or the law. On the other hand, whatever the honourable Supreme Court did violated one or another provision of the Constitution, the law or norm of propriety. The information reveals a pervasive, insidious and systemic malaise and institutional despotism in the functioning of the honourable Supreme Court that needs to be remedied by the removal of the misconducting judges.
The information furnished to the Council evidences that their misconducting Lordships have reduced the Supreme Court to the level of a farce and joke in relation to its capability to conduct lawful and honest adjudication with detachment and objectivity.
It has been laid bare before the Council that their Lordships, by conscious choice, have been throughout unfaithful and disrespectful to the Constitution and the law and have displayed a lack of judicial integrity. It is only natural and inevitable that in their everyday Orders and Judgements they can only apply the Constitution and the law dishonestly and selectively. It is explicit from the instances of misconduct brought to the notice of the Council that these honourable Judges, for whom to pursue their own agenda became more important than to go by the Constitution and the law, are incapable of conducting any Court business honestly and in accordance with the Constitution. All their decisions will, wittingly as well as unwittingly, carry the taint of unfaithfulness to the Constitution.
The purity and honour of the Supreme Court, a prime concern of the Council, are co-extensive and co-terminus with the Court’s commitment to the Constitution and the Rule of Law. On getting the Supreme Court to forsake the Constitutional path the Court was shorn of its purity and honour.
Non-adherence to the Constitution and the law is a manifestation of unfitness for the position of Judge of the Supreme Court.
There is nothing defensible in their Lordships’conduct and one would have to be living in a fool’s paradise to expect the apex Court to go straight in accordance with the Constitution while these honourable Judges adorn the bench.
The privilege assumed by their Lordships to defy the Constitution and pass orders with gay abandon, should be brought to a close. Those who are supposed to be Guardians of the Constitution should not themselves be privileged to violate it with corrupt impunity.
If an analogy were to be drawn, their misconducting Lordships’ penchant for coercive action outside of the Court’s jurisdiction, without the sanction of law, in violation of Constitutional stipulations and without taking into account any fact is akin to a police man who by virtue of his uniform goes about with a gun robbing, shooting and raping.
Each day that their misconducting Lordships remain on the Bench is an insult to the Constitution and compromises the integrity and credibility of the honourable Supreme Court.
The question before the Council, rather than the fate of individual Judges is the fate of the integrity and credibility of the Supreme Court and its purity and honour. It is, therefore, most important that the Council undertakes the instant inquiries without delay and with a modicum of openness and transparency, before the situation takes a turn where there remains nothing to be salvaged.
