Bench hearing pleas challenging reference against Justice Isa disbanded

ISLAMABAD: A larger bench constituted for hearing the constitutional petitions challenging the presidential reference filed against Senior Judge of the Supreme Courtof Pakistan Justice Qazi Faez Isa on Tuesday disbanded after two of its members Justice Sardar Tariq Masood and Justice Ijazul Ahsen recused themselves from the bench.

A seven-member bench of the apex court headed by Justice Umar Ata Bandyal 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 on the petitions challenging the presidential references filed against Justice Qazi Faez Isa and Justice KK Agha of the Sindh High Court.

The two judges recused themselves 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 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.

After the two judges recused themselves from the bench, Justice Umar Ata Bandyal heading the larger bench said as some of their colleagues don’t want to be part of the bench, hence the matter is being referred to the chief justice of Pakistan for reconstitution of the bench in the instant matter.

“We would request the chief justice of Pakistan to fix the matter possibly for next week,” Justice Bandyal said. When asked about the date, Justice Bandyal replied that they are not sure of the date but said let the chief justice decide it.

Meanwhile, Justice Sardar Tariq Masood said he had already made up his mind not to be part of this bench, adding that he was not recusing himself in lieu of the objections raised by the petitioner. The judge said if the instant petition is rejected, the matter will ultimately go back to the Supreme Judicial Council.

Meanwhile, Justice Ijazul Ahsen who recused himself from the bench, said he also wants to say something. Reading out a written statement, Justice Ijazul Ahsen said: “The oath of my office obligates me in all circumstances to do right to all manners of people according to the law without fear or favour or ill will and that I will not allow personal interest to influence my official conduct or my official decisions.” “I have no doubt in my mind that I can uphold the oath of my office and the high ideals this office represents”, Justice Ahsen maintained.

However, Justice Ahsen said that in view of the reservations unfortunately expressed on behalf of the petitioner who is a brother judge of this court, which are neither justified nor have any basis whatsoever in fact, he does not consider it appropriate to hear these petitions, lest there be the remotest possibility of entertaining even a notional element of bias or partiality on his part at the back of the petitioner’s mind.

“Therefore, keeping in view the best traditions and practice of this court for adherence to the rule of law and the highest standards of transparency, impartiality and propriety and in line with my own moral values, I do not consider it in the fitness of things to sit in this bench,” Justice Ahsen concluded.

Munir A Malik submitted that he has confidence in both the judges who wish to recuse themselves from the bench.

Apart from Justice Qazi Faez Isa, various bar associations and bar councils have also challenged the presidential references filed against Justice Qazi Faez Isa of the Supreme Court and Justice KK Agha of the Sindh High Court, alleging that they owned properties in London but did not disclose them in their wealth statements. They are Supreme Court Bar Association (SCBA), Pakistan Bar Council (PBC), Sindh High Court Bar Association, Quetta Bar Association, Balochistan Bar Council, Balochistan High Court Bar Association, Sindh Bar Council through former Chairman Senate and lawyer Raza Rabbani as well as a joint petition filed by advocate Abid Hassan Manto and I.A.Rehman.

On Monday, during the course of hearing, the petitioners along with their respective counsel were present in the courtroom. Prominent lawyers including Hamid Khan, Rashid A Rizvi, Hamid Khan, former chairman Senate Raza Rabbani, Sheikh Ahsenuddin, Vice Chairman Pakistan Bar Council Syed Amjad Shah, Amanullah Kanrani, Kamran Murtaza as well as Babar Sattar, who is one of the lead members of the panel of lawyers with Munir A Malik, were present on the occasion. Likewise, in absence of Attorney General Anwar Mansoor Ali Khan, Sohail Mahmood and Sajid Ilyas Bhatti, deputy attorney generals, were present in the courtroom.

Commencing his arguments, Munir A Malik, counsel for Justice Qazi Faez Isa, submitted they have great respect for the integrity and independence of the judiciary. He contended that his submission on the eligibility of the judges to hear the instant petition is on two points, one that a full court should be constituted of capable judges who are not the members of the Supreme Judicial Council (SJC) and secondly the principle of recusal must be respected, saying some of the judges who could be beneficiary should recuse themselves from the bench. Elaborating his point, the counsel contended that the judges whose interests are connected with the instant matter should not be part of this bench, saying that no judge can become a judge of his own cause.

During the hearing, Munir A Malik cited judgments including Malik Asad’ case as well as former chief justice Iftikhar Muhammad Chaudhry’s case wherein Justice (retd) Ajmal Mian and Justice Falak Sher had recused themselves from hearing similar types of cases. The counsel reiterated that “not only justice be done; it must also be seen to be done". He submitted that it is necessary that the public must have confidence in judiciary, adding that if there is no confidence of the public, justice cannot be provided.

Justice Umar Ata Bandyal asked the counsel about the judge who could be biased. Munir A Malik, however, contended he was not saying that any judge was biased but the principle of recusal must be respected in the interest of justice. “We want to ensure that every judge of the apex court is fulfilling his professional obligation and performing duties in accordance with the law and constitution”, Justice Umar Ata Bandyal remarked, adding that no judge of the apex court has any interest in this particular case.

Munir A Malik contended that two members of the bench have direct interest in this case as they would likely become chief justices and will draw their salaries. Similarly, the counsel contended that if any judge has direct interest in the matter, he should avoid to be part of the said bench. In this respect, he read out Article 4 of the Code of Conduct for the judges of the supreme court and high courts.

Justice Umar Ata Bandyal observed that the judgment of Justice Khwaja is in filed wherein it was held that being a judge, a judge does not know anyone.

Justice Faisal Arab, another member of the bench, observed that the Supreme Judicial Council will continue its proceedings if Munir A Malik fails to prove his point.

It is pertinent to mention here that as per the seniority list of SC judges, their elevation and retirement either as judge or chief justice of the apex court, after the retirement of next Chief Justice of Pakistan Justice Gulzar Ahmed on February 1, 2022, Justice Umar Ata Bandyal will take over as next chief justice and will continue till his retirement on September 16, 2023.

If Justice Qazi Faez Isa continues as judge, he will be sworn as chief justice of Pakistan on September 17, 2023 and will hold the post till his retirement on October 25, 2024.

In the meantime, three judges including Justice Maqbool Baqir will retire on April 4, 2022, Justice Manzoor Ahmed Malik will retire on April 30, 2021 and Justice Sardar Tariq Masood on March 10, 2024. However, in a scenario if Justice Qazi Faez Isa is impeached and removed as judge of the Supreme Court by the Supreme Judicial Council, Justice Sardar Tariq Masood will take over as the chief justice of Pakistan and will continue his office for seven months till his retirement on March 10, 2024.

Thereafter, Justice Ijazul Ahsen will sworn as chief justice of Pakistan on March 11, 2024 instead of October 25, 2024 which is the date of retirement of Justice Qazi Faez Isa.

After the proceedings of the larger bench, Vice Chairman Pakistan Bar Council Syed Amjad Shah while talking to the media outside the supreme court paid rich tribute to the two judges who recused themselves from the larger bench. He said that after recusing, the respect of the two judges has enhanced.

President Arif Alvi had filed the references in the Supreme Judicial Council (SJC), a constitutional forum established under 209 of the Constitution for the accountability of judges of the superior courts for misconduct. The presidential references were filed against Justice Qazi Faez Isa and Justice KK Agha, alleging that they owned properties in London but did not disclose them in their wealth returns.

Justice Qazi Faez Isa had already rejected the allegations levelled against him in the presidential reference. Similarly, last month, Justice Qazi Faez Isa had challenged before the Supreme Court of Pakistan the presidential reference filed against him. In his petition, Justice Isa had prayed to declare the presidential reference and the complaint seeking his removal mala fide, filed for ulterior motives and to achieve a collateral purpose. Similarly, he had also prayed to declare that in camera proceedings of the Supreme Judicial Council in the context of this case are without lawful authority and in breach of fundamental rights.

Later on, Justice Isa filed another application in the supreme court, requesting the apex court to fix his constitutional petition along with all pending applications before the full-court comprising all the eligible judges of the apex court. Justice Isa had filed a civil miscellaneous application (CMA) under Order XI read with Order XXXIII Rule 6 of the Supreme Court Rules, 1980 praying for fixing his constitutional petition along with all pending applications before the full-court comprising all the eligible judges of the apex court.

He had prayed to the apex court to declare that the present Chairman (Chief Justice Asif Saeed Khan Khosa ) and Members of the Supreme Judicial Council are no longer competent to hear the presidential reference against him on account of the bias shown against him demonstrable form the order disposing of the reference of Waheed Shahzad Butt.