‘Eligible judges’ to hear Justice Isa’s pleas

By Tariq Butt
September 19, 2019

ISLAMABAD: Justice Qazi Faez Isa’s request to constitute a full court has been accepted as the 7-member Supreme Court bench has “directed” formation of such a panel to hear his pleas against the presidential reference filed in the Supreme Judicial Council (SJC).

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In its order, the bench said that “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.” The file may be placed before Chief Justice of Pakistan, Justice Asif Saeed Khosa “for passing appropriate order,” it said.

Through his applications, Justice Isa had twice sought full court comprising “all eligible judges” to hear his petition against the SJC proceedings. The chief justice had not entertained these requests and constituted a 7-member bench which, however, stood dissolved after recusal of Justice Sardar Tariq Masood and Justice Ijazul Ahsan after objections were raised on their presence on Tuesday. In view of the direction of the 7-member bench, the full court is likely to consist of 11 justices out of the total 16 judges of the Supreme Court. Those who are unexpected to be part of the full court include three members of the SJC—Chief Justice Khosa, Justice Gulzar Ahmed and Justice Mushir Alam —Justice Tariq Masood and Justice Ijazul Ahsan, who recused themselves from hearing the challenge to the SJC proceedings, and Justice Isa, who is a party in the case.

The 7-judge panel’s order said that to explain the expression “eligible Judges”, Justice Isa’s lawyer Munir A Malik, with utmost respect, requested that the 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 the Supreme Court and high courts judges. He acknowledges that the dismissal of this petition by the apex 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 the chief justice, the order noted.

According to it, Malik 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.

Malik accepted that unlike the precedent case, there is no involvement of any present, existing, immediate interest of any judge on this 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 chief justice, is inapt, the order said.

It further said that during the break, the members of the bench conferred with each other. As a matter of grace for safeguarding the pristine purity, dignity and sanctity of the institution of the Supreme Court and for avoiding any motivated attribution, insinuation or discussion on the present subject by any quarters, Justice 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, the order said.

It said Munir A Malik referred to judgement of the English House of Lords in Re Pinochet [(2000) 1 Appeal Cases 119]. That judgement 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, the order said, in that case a present interest of a 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 counsel. In fact, his plea is based on the contingent, prospective, speculative possibility of the office of chief justice being not occupied by Justice Isa in the year 2023 and for the ineligible judges to be awaiting that eventuality so as to benefit therefrom, the order said.

It said 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 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.”

The order said that 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.

As per the order, the oath of office of Supreme Court judge expressly states 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. These 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 order said, the involvement of any existing tangible, palpable, personal or pecuniary interest of a judge in a matter justifies his recusal. Malik’s submissions, 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 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)]. As such the submissions made by Malik prima facie do not carry weight, the order said.

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