ISLAMABAD: A senior member of the Supreme Judicial Council (SJC), the constitutional forum that examines the conduct of the superior court judges, has withdrawn himself from hearing a reference against a Lahore High Court judge.

Although Justice Asif Saeed Khosa — a member of the five-judge SJC headed by Chief Justice Mian Saqib Nisar — recused himself citing personal reasons and emphasising that he had no personal bias against the respondent, sources told Dawn that senior counsel Khawaja Haris Ahmed, appearing on behalf of the LHC judge, had raised strong objection to his presence in the SJC.

The reference was initiated on the basis of a January 2014 judgement in which the Supreme Court had taken strong exception to the way the judge had entertained a bail application of an accused and had described it as colourable exercise of jurisdiction. This had also compelled the court to develop guidelines to be followed in future by all the high court judges and magistrates while granting bail in criminal cases.

The principles regarding bail matters were enunciated by Justice Khosa in the judgement on two review petitions, one of them by the judge facing the reference before the SJC.

In his strongly worded verdict, Justice Khosa had observed that filing of a review petition by an ordinary litigant was run of the mill but a high court judge in person seeking review of the judgement was out of the ordinary and might raise many an eyebrow in view of the provisions of Article VI of the Code of Conduct for Judges.

The code asked the judges to avoid, as far as possible, getting entangled in litigations, the judgement said.

The controversy had come to light when the high court judge accepted the bail application of a litigant in the third round and that too when the litigant had changed his earlier counsel.

The earlier bail requests had borne no fruit despite the fact that they had been moved on the same grounds.

The high court judge had also moved a constitutional petition before the Supreme Court under Article 184(3) of the Constitution, challenging the issuance of a show cause notice on April 19 last year by the SJC on the allegation of misconduct.

The petition had pleaded before the apex court to declare the notice and all acts leading to its issuance as unlawful, unconstitutional, without jurisdiction and contrary to public interest, and in violation of Articles 209(5) (SJC), 9 (security of person), 10A (fair trial), 19 (freedom of speech) and 25 (equality of citizens).

Later the judge had withdrawn the petition from the Supreme Court on the grounds that he had also raised objections before the SJC and there was no need of a parallel hearing.

In his objection, the sources said, the counsel requested that since the genesis behind the reference was the 2014 judgement, therefore, propriety demanded that the author judge should not sit in the council.

Open hearing

The SJC has also dismissed a request by an Islamabad High Court judge for an open trial against him. The council had reserved its decision on the issue on May 18.

In its order, it stated that it was in the larger interest of the judiciary that the proceedings were not conducted in open court, as the issue brought before the SJC and the allegations levelled might ultimately prove false, frivolous or vexatious.

Published in Dawn, June 3rd, 2017