SC orders full court constitution in Faez Isa caseArchive
ISLAMABAD: The Supreme Court on Wednesday ordered constitution of a full court consisting of all available judges to hear a set of challenges to the presidential reference against SC judge Justice Qazi Faez Isa.
A seven-judge SC bench headed by Justice Umar Ata Bandial also directed that the entire case file be furnished before Chief Justice Asif Saeed Khosa for an appropriate order in this regard. The directive was issued to promote transparency in the proceedings, the bench said in a seven-page order. It, however, held that the submissions made by the counsel representing the judge prima facie did not carry weight.
The order relates to the hearing on Tuesday of the petitions challenging the presidential reference when two judges of the seven-member bench — Justice Sardar Tariq Masood and Justice Ijaz-ul-Ahsan — had recused themselves from hearing the case. It is likely that a full bench consisting of all the judges will be constituted by the chief justice for hearing the case.
The apex court is seized with nine petitions moved by Justice Isa himself, the Supreme Court Bar Association (SCBA), Pakistan Bar Council (PBC), Abid Hasan Minto, president of the High Court Bar Association, Quetta, Abdul Basit, Quetta Bar Association president Mohammad Asif Reki, the Sindh High Court Bar Association, Balochistan Bar Council and Sindh Bar Council.
Apex court holds that submissions made by judge’s counsel prima facie do not carry weight
The SC order explained that during a 30-minute tea break, the bench members conferred with each other and 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 subject by any quarters, two members of the bench for their personal reasons and for their own volition decided to recuse themselves from these proceedings.
On Tuesday, eminent lawyer Muneer A. Malik, representing Justice Isa, had sought the constitution of a full court comprising eligible judges for hearing the matter. Explaining the ‘‘eligible judges’’, the counsel said the judges on the bench who might possibly benefit from the dismissal of this petition should kindly recuse from the proceedings, in addition to three senior judges who were members of the Supreme Judicial Council (SJC).
Mr Malik had contended that the possibility of being swayed by any consideration personal advantage was a ground for recusal under Article 4 of the Code of Conduct of Judges of the Supreme Court and the High Courts. He had also acknowledged that the dismissal of this petition by the apex court could not by any means entail an adverse recommendation to the president under Article 209 of the Constitution against the petitioner. Nevertheless, he added, 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 the chief justice.
But the SC order explained that the submissions made by the counsel did not disclose any interest, when the involvement of any existing tangible, palpable, personal or pecuniary interest of a judge always justified his recusal. Rather it was conceded that any tangible interest might accrue four years later, it said.
“It involves a contingent, prospective and speculative interest,” the order said, adding that no precedent to hold such a future contingency to be a disqualifying factor for a judge had been cited by the counsel. His [counsel] plea, the order observed, is laden with contingencies and possibly fails the test of a “real likelihood” of prejudice from any member of this bench.
Justice Ijaz-ul-Ahsan, who withdrew himself from the bench, explained that he had gone through the order and was entirely in agreement with it. He said his oath of office obligated him, in all circumstances to do right to all manner of people, according to law, without fear, affection or ill will, and that he would not allow personal interest to influence his official conduct or his official decisions.
“I do not have even the slightest shadow of doubt in my mind, that I am fully capable of and committed to uphold, honour and maintain the sanctity of each word of my oath,” he said in his additional note, adding that in view of the reservations, unfortunately expressed on behalf of the petitioner, who was a brother judge of this court, which were neither justified nor have any basis whatsoever in fact, he did not consider it appropriate to hear these petitions, lest the petitioner entertain the remotest possibility of even a notional element of partiality or bias on his part.
Therefore, Justice Ahsan said, keeping in view the longstanding traditions and practice of this court, for adherence to the rule of law and the highest standards of transparency, impartiality and propriety, in line with his own moral values and to uphold, protect, preserve and enhance the dignity and majesty of this great institution, he did not consider it in the fitness of things to sit on the bench.
In his application seeking the constitution of a full court, Justice Isa had explained that he never aspired to the office of a judge or the chief justice but accepted the heavy responsibility when he was called upon to accept the position of the chief justice of the Balochistan High Court at a time when the chief justice and all other judges of the BHC had tendered their resignation.
He said he believed that the office of a judge should not be desired and that he ordinarily would not hesitate to relinquish his office, but to do so in the prevailing circumstances would facilitate the sinister attack launched upon the judiciary and on its independence. This would also be a betrayal of his oath of office which mandated that he must preserve protect and defend the Constitution, Justice Isa said.
Published in Dawn, September 19th, 2019