A seven-member Supreme Court bench on Tuesday decided to send the matter of forming a new bench to hear the presidential reference against Justice Qazi Faez Isa to the chief justice.

This was decided after Justices Ijazul Ahsan and Sardar Tariq Masood recused themselves from a seven-member bench — headed by Justice Umar Ata Bandial and comprising Justices Maqbool Baqar, Manzoor Ahmed Malik, Masood, Faisal Arab, Ahsan and Mazhar Alam Khan Miankhel — hearing a set of petitions challenging the presidential reference.

"We had already decided that we will not sit on the bench," Justice Masood said.

"We have to uphold the oath we swore under all circumstances," Justice Ahsan said, explaining that he would not sit in judgement over "a brother judge of this court" after the "unfortunate" reservations over his partiality expressed by Justice Isa's lawyer.

Justice Isa's lawyer Muneer A. Malik had requested the Supreme Court to form a full court bench of "capable judges", who are not members of the Supreme Judicial Council (SJC), to hear his client's petition.

Malik, during his arguments today, had said that two judges had a "direct interest" in the case against Justice Isa.

"Any judge who has a personal stake in this case should not be attached with it," Malik said earlier today as the bench took up the petition filed by Justice Isa on Aug 26 seeking formation of a full court bench. "Judges whose interests are vested in this case should not be a part of this bench."

At this, Justice Bandial had asked: "Which judge can be called biased?"

"I am not saying that any judge is biased," Malik had replied.

"I want to assure you that none of the judges of this court are biased," Justice Bandial had said in response. "Every judge of this court performs their duty in accordance with the law and the Constitution. None of the judges of this court have an interest in this case. By saying that that [any] judge is biased, you are going in the wrong direction."

"We want to hear more arguments over the [alleged] bias of [judges]," Justice Bandial had said.

"The judges who are to become chief justice [in future] have a personal interest," Malik had then said, adding: "Two judges, who are part of this bench, will potentially become chief justice [in future]. Those two judges have a direct interest."

Malik had then argued that a judge "should not hear [a case] as per the code of conduct, if he has a direct interest".

"This argument has been raised to protect the institution," he said.

However, Justice Bandial chastised him for "raising this objection in the beginning of the proceedings", adding: "This objection will also hurt people's confidence in the judiciary."

"A judge has the authority to step away from a bench. There are court verdicts which say that no judge can be forced to distance himself from a case," Justice Bandial said. "The judges have heard your point of view. They will take a decision themselves."

Later, Justice Bandial stated that the judges in question had recused themselves from the bench. Justice Ahsan was quoted as regretting the accusation of bias against him, but nonetheless agreeing to step down from the bench if it meant reassuring Justice Isa that there would be no bias against him.

The matter will now be sent to Chief Justice Asif Saeed Khosa, and the top judge will decide if a new bench should be formed or not.

Justice Isa calls 'bias'

Justice Isa — who is currently facing a misconduct reference filed by the president against him in the SJC — in his application seeking formation of a full court had argued that the full court was necessary because the present matter pertained to a reference against the apex court judge and as per the precedent established in the 2010 SC judge in the Iftikhar Mohammad Chaudhry case.

In support of his argument, Justice Isa contended that the SJC "expressed bias" against him in its verdict on Reference 427 (a second petition) and has therefore lost its credibility to give him a fair hearing.

In his application, Justice Isa had said he was ready to face any reference if conducted in accordance with the law and propriety, but regretted that he, his wife and children had allegedly been subjected to persecution when the Holy Quran stated that persecution was worse than death. The application had contended that the petitioner’s wife and adult children were illegally surveilled through intelligence apparatus and by misusing public funds.

Personal data, records and documents of the judge’s wife and adult children were probed, examined, scrutinised and analysed, including the confidential record maintained by Nadra, FIA, Passport and Immigration Office, FBR and the interior ministry, the application had contended. Then the harvested mismatched information and documents were used to paint half-truths and put together a false reference by launching insidious attack against the judge, it alleged.

The application also mentioned in detail the judge’s two meetings with the chief justice and said he did not raise these issues merely for the enforcement of his fundamental rights but also because "something far more sinister was afoot" — the very destruction of the independence of the judiciary at the hands of an executive which had overstepped the prescribed constitutional boundaries.

The petition requested the Supreme Court to dismiss the presidential reference on the sole ground of the complainant’s failure to establish the allegations made against the judge as found by the council.

References against Justice Isa

A reference had been instituted in May this year against Justice Isa accusing the judge of concealing his properties in the United Kingdom, allegedly held in the name of his wife and children. The judge subsequently wrote three letters to President Arif Alvi, which were eventually leaked to the media, asking him to confirm whether the reports were true.

The judge had complained that selective leaks of the reference to the media amounted to his character assassination, thus jeopardising his right to due process and fair trial. He had also sought a copy of the reference.

Later, a lawyer from Lahore, Waheed Shahzad Butt, had filed a second reference before the SJC against Justice Isa for writing the said letters and leaking them to the media. In this second reference, filed under Article 209 of the Constitution, the judge was accused of violating the Code of Conduct for judges. That reference has since been dismissed.