ISLAMABAD: Two members of the seven-judge Supreme Court bench on Tuesday declined to hear a set of challenges to the presidential reference against Justice Qazi Faez Isa when the petitioner emphasised that both members would be direct beneficiaries if the Supreme Judicial Council (SJC) impeached him and that justice should not only be done but should also be seen to be done.

“The principle of recusal stems from the maxim that justice should not only be done but should also be seen to be done,” senior counsel Muneer A. Malik argued, explaining that his client had no doubt that justice would not be meted out to him but recusal of judges was in the interest of this institution since Ceaser’s wife should always be above suspicion.

Headed by Justice Umar Ata Bandial, the bench in a packed to capacity courtroom also comprised Justice Maqbool Baqar, Justice Manzoor Ahmed Malik, Justice Sardar Tariq Masood, Justice Faisal Arab, Justice Ijaz-ul-Ahsan and Justice Mazhar Alam Khan Miankhel.

Two judges recuse themselves from hearing pleas against presidential reference after arguments advanced by counsel

The bench is seized with a number of petitions moved by Justice Qazi Faez Isa himself, Supreme Court Bar Association (SCBA), Pakistan Bar Council (PBC), a joint petition by eminent jurist Abid Hassan Minto and rights activist I.A. Rehman, Sindh High Court Bar Association, Quetta Bar Association (QBA) president Mohammad Asif Reki, Balochistan High Court Bar Association president Abdul Basit and the Sindh Bar Council (SBC).

The petitioner judge had objected to the presence of Justice Sardar Tariq Masood and Justice Ijaz-ul-Ahsan since if he (Justice Isa) was impeached by the Supreme Judicial Council (SJC), Justice Masood would be elevated to the position of chief justice for six months till March 10, 2024, otherwise he would reach superannuation as judge. Similarly, in this scenario Justice Ahsan would become the chief justice in March 2024 instead of Oct 25, 2024.

After hearing the arguments, the SC bench members retired to consider them during a 30-minute tea break. When they assembled again after 60 minutes, a visibly disturbed Justice Bandial announced that some bench members would not like to continue.

He said the matter would be referred to Chief Justice Asif Saeed Khosa for the constitution of a different bench for an early hearing, possibly by next week.

Explaining his position, Justice Masood observed that he already had made up his mind not to sit on the bench before being pointed out by the counsel, but reminded them that even if the SC rejected the petitions against the filing of the references, the SJC would take up the matter again for a final decision.

While reading out from a note, Justice Ijaz-ul-Ahsan said the oath of his office obligated him in all circumstances to do right to all manner of people according to law without fear or favour, affection or ill-will and that he would not allow personal interest to influence his official conduct or his 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 Ahsan observed. He added that in view of the reservations unfortunately expressed on behalf of the petitioner, who was a brother judge, which were neither justified nor have any basis whatsoever in fact, he too did not consider 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 Ahsan said.

Justice Bandial regretted that the principle of recusal of a judge was a question of law and therefore should be decided, but highlighted that his only concern was that “no litigant should have the right to start picking and choosing. This must never happen and no one should have the right to make objections that A or B should hear or not hear his case. But in respect of the judges who were really like jewels, these hearings cannot go on,” Justice Bandial observed and while pointing towards the counsel said: “I invite you to stop here.”

Mr Malik, however, contended that his client had the deepest confidence in the integrity of the judges who wished to recuse. He said he knew Justice Ahsan before his becoming judge and found him a gem of a person.

At the outset, the counsel commenced his arguments by citing a recent speech of Chief Justice Asif Saeed Khosa in which the latter had expressed concern over the growing perception of “lopsided accountability” process and therefore needed urgent remedial measures to save it from losing credibility as well as the disturbing perception of “muzzling of the print and electronic media” and the suppression of dissent”.

“That’s what the present case is all about,” the counsel contended, adding that the bench and the bar were at the crossroads and the eyes and ears of the entire nation were on this bench. He said he had instructions from his client that his paramount duty while arguing the case should be to ensure the image of the judiciary was not tarnished.

The counsel referred to the application on behalf of Justice Isa for the constitution of a full court comprising all the eligible judges. “And what he meant by eligible judges,” he explained, “was that the three judges who were members of the SJC should not sit on the full court, whereas the two judges who will be the greatest beneficiary in case of removal of Justice Isa should also not be part of the bench.”

To substantiate, he referred to 1988 Malik Asad Ali case in which then Acting Chief Justice Ajmal Mian refused to be part of a full court since he had issued an administrative order for the constitution of a larger bench besides he would be the ultimate beneficiary in case then Chief Justice Sajjad Ali Shah was removed.

To establish the concept of judicial bias, the petitioner also cited the 1998 Chilean dictator general Augusto Pinochet case when the House of Lords ruled against him for committing crimes against humanity. But the ruling was overturned when Pinochet sought to set aside the verdict on the grounds that Lord Hoffmann – one of the members of the five-member bench – was an unpaid director and chairperson of the Amnesty International Charity Limited and that his wife was also employed by the Amnesty International.

The counsel contended that the judiciary functions on the basis of people’s trust that should never be shattered.

Published in Dawn, September 18th, 2019