2019 PLP 1875 (SCMR)
JUSTICE QAZI FAEZ ISA and others — Petitioners Versus The PRESIDENT OF PAKISTAN and others — Respondents
| Citation | 2019 PLP 1875 (SCMR) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Umar Ata Bandial, Maqbool Baqar, Manzoor Ahmad Malik, |
| Parties | JUSTICE QAZI FAEZ ISA and others — Petitioners Versus The PRESIDENT OF PAKISTAN and others — Respondents |
| Primary Law | Code of Conduct for Judges of the Supreme Court and High Courts |
Q1: What are the key laws and sections cited in 2019 PLP 1875 (SCMR)?
This judgment primarily cites: Code of Conduct for Judges of the Supreme Court and High Courts as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2019 PLP 1875 (SCMR)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Umar Ata Bandial, Maqbool Baqar, Manzoor Ahmad Malik,.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2019 PLP 1875 (SCMR) (JUSTICE QAZI FAEZ ISA and others — Petitioners Versus The PRESIDENT OF PAKISTAN and others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- ----Art. IV---Constitution of Pakistan, Art. 209(8)---Recusal of a Judge from a case---Scope---Contingent, prospective and speculative interest in a case---No real likelihood of prejudice---Plea on behalf of petitioner-Judge that some Judges on the Bench hearing the present Constitutional petition may possibly benefit from dismissal of persent petition; that personal advantage would accrue to such Judges in the year 2023 in case the petitioner-Judge (was removed) and did not assume the office of Chief Justice of the Supreme Court---Held, that the involvement of any existing tangible, palpable, personal or pecuniary interest of a Judge in a matter justified his recusal---However, in the present case there was no involvement of any present, existing, immediate interest of any Judge on the Bench in the outcome of the present petition; that the possible benefit or interest that may accrue would, if at all, happen some four years later---Plea of petitioner-Judge was based on the contingent, prospective, speculative interest/possibility of the office of Chief Justice of the Supreme Court being not occupied by the petitioner in the year 2023 and for some of the Judges on the Bench to be awaiting that eventuality so as to benefit therefrom---Counsel for petitioner could not cite any precedent to hold such a future contingency to be a disqualifying factor for a Judge from hearing a case---Plea of petitioner-Judge was laden with contingencies and possibly failed the test of a "real likelihood" of prejudice from any Member of the present Bench---Nevertheless 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 case/subject by any quarters, two Members of the current Bench, for their personal reasons and of their own volition, decided to recuse themselves from present proceedings---Supreme Court directed that to further promote transparency in the proceedings and confidence of all persons interested in present proceedings, Full Court may be constituted in the present matter upon appropriate orders from the Chief Justice of the Supreme Court.
- Munir A. Malik, Senior Advocate Supreme Court, Babar Sattar, Advocate Supreme Court, Tariq Mehmood, Advocate Supreme Court and Kosim Hussain, Advocate Supreme Court assisted by Barrister Rabi Bin Tariq for Petitioners (in Constitutional Petition No. 17 of 2019).
- Nemo for Respondents (in Constitutional Petition No. 17 of 2019).
- Salahuddin Ahmed, Advocate Supreme Court, Hamid Khan, Senior Advocate Supreme Court, Amanullah Kanrani, Advocate Supreme Court and Rasheed A. Rizvi, Senior Advocate Supreme Court for Petitioners (in Constitutional Petition No. 19 of 2019).
- Nemo for Respondents (in Constitutional Petition No. 19 of 2019).
- Bilal Hassan Minto, Advocate Supreme Court for Petitioners (in Constitutional Petition No. 20 of 2019).
- Nemo for Respondents (in Constitutional Petition No. 20 of 2019).
- Syed Amjad Ali Shah, Advocate Supreme Court, Kamran Murtaza, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in Constitutional Petition No. 21 of 2019).
- Nemo for Respondents (in Constitutional Petition No. 21 of 2019).
- Naseebullah Tareen, Advocate Supreme Court and Syed Amjad Shah, Advocate Supreme Court for Petitioners (in Constitutional Petition No. 22 of 2019).
- Nemo for Respondents (in Constitutional Petition No. 22 of 2019).
- Naseebullah Tareen, Advocate Supreme Court for Petitioners (in Constitutional Petition No. 23 of 2019).
- Nemo for Respondents (in Constitutional Petition No. 23 of 2019).
- Rasheed A. Rizvi, Senior Advocate Supreme Court for Petitioners (in Constitutional Petition No. 24 of 2019).
- Nemo for Respondents (in Constitutional Petition No. 24 of 2019).
- Nemo for Respondents (in Constitutional Petition No. 25 of 2019).
- Raza Rabbani, Advocate Supreme Court and Saalim Salam Ansari, Advocate Supreme Court for Petitioners (in Constitutional Petition No. 26 of 2019).
- Nemo for Respondents.
Headnotes / Summary
Asad Ali v. Federation of Pakistan PLD 1998 SC 161 and in Re Pinochet (2000) 1 Appeal Cases 119 distinguished. Independent Media Corporation v. Federation of Pakistan PLD 2014 SC 650 and Asif Ali Zardari v. State PLD 2001 SC 568 ref. Petitioners in person (in Constitutional Petition No. 25 of 2019).
Judgment & Decree
UMAR ATA BANDIAL, J.
Learned counsel for the petitioner has at the outset argued the C.M.A. No. 8297 of 2019 seeking the constitution of the Full Court comprising eligible Judges for hearing of the Constitution Petition No.17 of 2019.
2. To explain the expression "eligible Judges", learned counsel has, with utmost respect, requested that learned Judges on the Bench who may possibly benefit from the dismissal of this petition should kindly recuse from the proceedings. He emphasized 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 Judges of the Supreme Court and the High Courts of Pakistan. He acknowledges that the dismissal of this petition by the 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 CJP.
3. He relied upon Asad Ali v. Federation of Pakistan (PLD 1998 SC 161) and read the portion where the Hon'ble Acting Chief Justice had not only recused himself from sitting in the Full Court to hear the petitions filed against the Hon'ble 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. Learned counsel accepted that unlike the precedent case, there is no involvement of any present, existing, immediate interest of any Judge on the 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 CJP, is inapt.
4. Thereafter, the learned counsel referred to judgment of the English House of Lords in Re Pinochet [(2000) 1 Appeal Cases 119]. That judgment 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, in that case a present interest of a learned 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 learned counsel. In fact his plea is based on the contingent, prospective, speculative possibility of the office of CJP being not occupied by the petitioner in the year 2023 and for the ineligible Judges to be awaiting that eventuality so as to benefit therefrom. The terms of Article 4 of the Code of Conduct have been examined in the case of Independent Media Corporation v. Federation of Pakistan (PLD 2014 SC 650). In that case the issue arose whether the cause of the learned brother of the Judge's sister-in-law could be heard by him. The question was answered in the affirmative with the following observations: "
6. 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." 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. It is clear that I have no basis for regarding or treating Shakeel ur Rehman as a near relative.
7. The Oath of Office of Judges of the Supreme Court is set out in the Schedule to the Constitution as per Article
178. It is expressly stated therein 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. The above 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."
5. Consequently, the involvement of any existing tangible, palpable, personal or pecuniary interest of a learned Judge in a matter justifies his recusal. The submissions made by the learned counsel, 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 learned 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 v. State (PLD 2001 SC 568 at p.592)]. As such the submissions made by learned counsel prima facie do not carry weight.
6. During the break, however, 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 of Pakistan and for avoiding any motivated attribution, insinuation or discussion on the present subject by any quarters, two learned Members of the Bench, namely, Mr. Justice Sardar Tariq Masood and Mr. Justice Ijaz ul 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.
7. 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 the Hon'ble Chief Justice of Pakistan for passing appropriate orders. Adjourned. MWA/J-2/SC Order accordingly.