Qazi Isa’s petition: SC says objections to 2 judges unreasonable

ISLAMABAD: The larger bench constituted for hearing the constitutional petitions challenging the presidential reference filed against senior Judge of the Supreme Court Justice Qazi Faez Isa on Wednesday issued written order in the instant case as the SC held that the objection to two members on the larger bench were unreasonable however the judges recused themselves to avoid any controversy.

A seven-member bench of the apex court headed by Justice Umar Ata Bandial and comprising Justice Maqbool Baqar, Justice Manzoor Ahmad Malik, Justice Sardar Tariq Masood, Justice Faisal Arab, Justice Ijazul Ahsan and Justice Mazhar Alam Khan Miankhel took up the preliminary hearing the other day in the petitions, challenging the presidential references filed against Justice Qazi Faez Isa and Justice KK Agha of the Sindh High Court.

The bench however, disbanded after two of its members Justice Sardar Tariq Masood and Justice Ijazul Ahsen recused themselves from the bench.

The two judges recused from the bench after Munir A Malik, counsel for Justice Qazi Faez Isa sought their recusal as well as constitution of a full court of capable judges who are not members of the Supreme Judicial Council to hear his client’s petition.

He further submitted that his client had raised some sensitive issues in his petition hence a full court of capable judges, who are not members of the Supreme Judicial Council (SJC), should be constituted to hear his client's petition.

On Wednesday, the bench issued its written order and stated that the petitioner has, at the outset, argued the C.M.A No. 8297 of 2019 seeking the constitution of the full court comprising eligible judges for hearing of the Constitution Petition No.17 of 2019.

It stated that to explain the expression “eligible judges”, learned counsel has, with utmost respect, requested that learned judges on the bench, who may possibly benefit from the dismissal of this petition, should kindly recuse from the proceedings.

He emphasised that the “possibility” of being swayed by any consideration of personal advantage is a ground for recusal under Article 4 of the Code of Conduct of judges of the Supreme Court and the high courts of Pakistan.

He acknowledges that the dismissal of this petition by the court cannot by any means entail an adverse recommendation to the President of Pakistan under Article 209 of the Constitution against the petitioner. Nevertheless, the legal community and the public perceive that a personal advantage would accrue to the ineligible judges in the year 2023 in case the petitioner did not assume the office of CJP.

The order stated that the counsel relied upon Asad Ali versus Federation of Pakistan (PLD 1998 SC 161) and read the portion where the Acting Chief Justice had not only recused himself from sitting in the full court to hear the petitions filed against the Chief Justice but he also declined to pass any administrative order for constituting the full court on the ground of his perceived personal interest in the matter.

The written order further stated that the learned counsel accepted that unlike the precedent case, there is no involvement of any present, existing, immediate interest of any judge on the bench in the outcome of the petition; that the possible benefit or interest that may accrue would, if at all, happen some four years later. As such the example of the senior most judge, who has a present right under the Constitution to be appointed to the vacant office of CJP, is inapt.

The written order stated that thereafter, the learned counsel referred to judgment of the English House of Lords in Re Pinochet [(2000) 1 Appeal Cases 119].

That judgment concluded as follows: “By seeking to intervene in this appeal and being allowed so to intervene, in practice AI (Amnesty International) became a party to the appeal.

Therefore if, in the circumstances, it is right to treat Lord Hoffmann as being the alter ego of AI and therefore a judge in his own cause, then he must have been automatically disqualified on the grounds that he was a party to the appeal.

Alternatively, even if it be not right to say that Lord Hoffmann was a party to the appeal as such, the question then arises whether, in non-financial litigation, anything other than a financial or proprietary interest in the outcome is sufficient automatically to disqualify a man from sitting as judge in the cause.

Clearly, in that case a present interest of a learned judge was found to exist in the litigation being heard by him.

Whereas in the present case no such interest has been pointed out by the learned counsel. In fact his plea is based on the contingent, prospective, speculative possibility of the office of CJP being not occupied by the petitioner in the year 2023 and for the ineligible judges to be awaiting that eventuality so as to benefit therefrom.

The written order started that the terms of Article 4 of the Code of Conduct have been examined in the case of Independent Media Corporation versus Federation of Pakistan (PLD 2014 SC 650). In that case the issue arose whether the cause of the learned brother of the judge’s sister-in-law could be heard by him. The question was answered in the affirmative with the following observations:

The Code of Conduct prescribed by the Supreme Judicial Council for judges of the Superior Courts includes Article 4, which states that a judge should not “act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends.” From this, it will be evident that only such persons can trigger recusal of a judge who are considered to be close by a judge. The rationale of this stipulation is evident from its content.

The oath of office of judges of the Supreme Court is set out in the schedule to the Constitution as per Article 178. It is expressly stated therein that the judge “will not allow (his/personal interest to influence (his) official conduct or (his) official decision”. Judges also swear under the Constitution to “do right to all manner of people according to law without fear or favour, affection or ill-will.” The Holy Quran in fact directs judges to act fairly, justly and impartially even if they are hearing cases involving their own relatives.

The above provisions of the Code of Conduct or oath of office or the verses from the Holy Quran do not impose a bar on a judge from hearing cases unless there is cause under Article 4 of the Code of Conduct reproduced above.

No such cause exists in this case.” Consequently, the involvement of any existing tangible, palpable, personal or pecuniary interest of a learned judge in a matter justifies his recusal.

The written order stated that the submissions made by the learned counsel, however, do not disclose such an interest. On the other hand, the suggestion is that a tangible interest may accrue four years later.

It involves a contingent, prospective and speculative interest. No precedent to hold such a future contingency to be a disqualifying factor for a judge has been cited by the learned counsel. His plea is accordingly laden with contingencies and possibly fails the test of a “real likelihood” of prejudice from any member of this bench [Asif Ali Zardari versus State (PLD 2001 SC 568 at p.592)].

The written order further stated that as such the submissions made by learned counsel prima facie do not carry weight.

As a matter of grace for safeguarding the pristine purity, dignity and sanctity of the institution of the Supreme Court of Pakistan and for avoiding any motivated attribution, insinuation or discussion on the present subject by any quarters, two learned members of the bench, namely, Justice Sardar Tariq Masood and Justice Ijazul Ahsan have for their personal reasons and of their own volition, decided to recuse themselves from these proceedings. They also announced their decision in open court. As a result, the bench has ceased to be fully constituted.

In the circumstances, to further promote transparency in the proceedings and confidence of all persons interested in these proceedings, it is directed that the full court may be constituted in these connected matters, says the written order adding that the file may be placed before the Chief Justice of Pakistan for passing appropriate orders.