Justice Sardar Tariq Masood and Justice Ijaz-ul-Ahsan recused themselves from the bench hearing constitutional petitions of Justice Qazi Faez Isa and others against the composition of Supreme Judicial Council (SJC). The matter was referred to Chief Justice Asif Saeed Khan Khosa to reconstitute the bench.
A seven-judge larger bench, headed by Justice Umar Ata Bandial and comprising Justice Maqbool Baqar, Justice Manzoor Ahmad Malik, Justice Sardar Tariq Masood, Justice Faisal Arab, Justice Ijaz-ul-Ahsan and Justice Mazhar Alam Khan Miankhel heard the petitions of Justice Qazi Faez Isa, Pakistan Bar Council and Abid Hassan Minto, a senior Supreme Court lawyer, and IA Rehman, a veteran journalist and a human rights activist. Munir A Malik, who represented Justice Qazi Faez, argued that full court of eligible judges be constituted and demanded recusal of some members, saying that they may have pecuniary benefits in case his client is removed. "Justice should not only be done but also be seen to be done," he stated, and added: "No one should be the judge of his own cause."
To support his contention he cited the Supreme Court judgment in the Asad Ali case and the Augusto Pinochet case. He said in the Asad Ali case former Chief Justice Ajmal Mian not only recused himself from the judicial side but also from administrative functions. Munir emphasized upon the recusal of some members of the bench. Justice Bandial said they will hear his arguments after the tea break. When the bench reassembled after interval, Justice Bandial, without taking name of any judge, said some of the judges do not want to be the members of this bench. Munir A Malik replied: "I salute those judges who wish to recuse themselves from the bench," He stated that they have deepest confidence and believe in the integrity of the court.
Justice Bandial said: "We like to refer the matter to the Chief Justice to reconstitute the bench." "We are from different parts of the country and therefore cannot give you a fixed date, but we will request the Chief Justice for early hearing of the case," he added. Justice Tariq Masood said, "I have has decided not to be part of the bench not because of the objections raised by the petitioner but I made the decision on my own." If the petition is rejected then it will ultimately go to the Supreme Judicial Council for decision.
Justice Ijaz-ul-Ahsan stated: "The oath of my office obligates me in all circumstances to do right to all manner of people according to law without fear or favour, affection or ill-will and that I will not allow personal interest to influence my official conduct or my 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." "However, in view of the reservations unfortunately expressed on behalf of the petitioner who is a brother judge of this court, which are neither justified nor have any basis whatsoever in fact I do not consider it appropriate to hear these petitions, lest there be the remotest possibility of entertaining even a notional element of bias or partiality on my 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 Ijaz further said.
Justice Bandial said this is not the way a judge must be invited to recuse when he does not have any self-interest regarding the matter. "My concern today is that now the litigants start picking and choosing that A & B should hear or not hear his case." The Supreme Judicial Council (SJC) on August 19 had dismissed a complaint against Justice Qazi for writing letters to President Arif Alvi for supplying copy of the reference. However, the Presidential Reference against Justice Qazi Faez, a judge of Supreme Court and Justice KK Agha, a judge of Sindh High Court, for not declaring properties abroad and failing to mention them in the wealth statements is still pending before the Council.
Justice Qazi on August 26 filed an application under Orders XXV, XXVII, XXXIII Rule 6 of Supreme Court Rules, 1980 read with Article 184 (3) of the Constitution. He further prayed the petition be heard by the full court comprising all eligible judges of the apex court.
Earlier Munir A Malik argued that any judge who has a personal stake in this case should not be attached with it. "Judges whose interests are vested in this case should not be a part of this bench," he said. At this, Justice Bandial asked: "Which judge can be biased?" "I am not saying that any judge is biased," Malik replied.
"I want to assure you that none of the judges of this court is biased," Justice Bandial said. "Every judge of this court performs his duty in accordance with the law and the Constitution. None of the judges of this court has an interest in this case. By saying that [any] judge is biased, you are going in the wrong direction. We want to hear more arguments over the bias of [judges]," Justice Bandial further said. "The judges who are to become chief justice [in future] have a personal interest," Malik said, adding: "Two judges, who are part of this bench, will potentially become chief justice [in future]. Those two judges have a direct interest."
Justice Qazi's counsel argued that a judge "should not hear [a case] as per code of conduct if he has a direct interest. This argument has been raised to protect the institution."
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