ISLAMABAD: Supreme Court Judge Justice Qazi Faez Isa has said that he would not hesitate to relinquish his office but decided not to do so because in the prevailing circumstances his resignation would facilitate “sinister attack launched on the judiciary and its independence”.
Justice Isa in person has filed a fresh application in the apex court under order XXXIII Rule 6 of the Supreme Court Rules 1980, wherein it is stated that his resignation would also be a betrayal of his oath of office, which mandates that he must preserve, protect and defend the constitution.
Justice Isa has also expressed concern that the reputation of Chief Justice Asif Saeed Khosa should be “insulated from unnecessary controversy”.
“The Chief Justice by preventing the petition to be decided by all eligible judges of this court has left ajar door to further controversy. The petitioner is equally concerned about the reputation of the chief justice which should be insulated from unnecessary controversy.”
Referring to CJP Khosa’s recent speech on the eve of new judicial year wherein he talked about growing perception regarding lopsided accountability, Justice Isa questioned whether by preventing all the eligible judges of the court to hear the petition, the chief justice not further entrenched the perception which he wanted to dispel.
Justice Isa also said that he had full confidence in every judge of the bench and does not want any particular judge to hear his petition.
“The fairest and most transparent method of adjudication of the petition would be if it is heard by all the eligible judges of this court with principle of eligibility having already been settled in the case of Asad Ali vs federation.”
He lamented that the CJP had elected to constitute a bench by leaving out from the bench eligible judges of the court for not “discernable reason”.
Justice Isa said that he was a judge of the court and had always endeavoured to uphold independence of the judiciary and the rule of law and at no account would he want the image of the institution in which he had served for approximately ten years to be tarnished. The judge believed that the office of a judge should not be desired.
Two judges recuse themselves from Justice Isa’s case
Two SC judges namely Justice Sardar Tariq Masood and Justice Ijazul Ahsan on Tuesday recused themselves from a seven-judge larger bench hearing petitions challenging the presidential references filed against Justice Qazi Faez Isa.
The development came after Justice Isa’s counsel Muneer A Malik pressed his application about constitution of full court comprising eligible judges.
The matter has now been referred to Chief Justice of Pakistan (CJP) Justice Asif Saeed Khosa for reconstitution of the bench.
Earlier, CJP Khosa had constituted a seven-member bench led by Justice Umar Ata Bandial and comprising Justice Maqbool Baqar, Justice Manzoor Ahmad Malik, Justice Sardar Tariq Masood, Justice Faisal Arab, Justice Ijazul Ahsan and Justice Mazhar Alam Khan Miankhel to hear the petitions filed by Justice Isa and different superior bars against presidential reference seeking SC judge removal on account of misconduct for not declaring his family’s foreign properties in his wealth statement.
Justice Isa on Tuesday nominated Muneer A Malik as counsel to plead his case. He was assisted by eminent lawyers namely Tariq Mahmood, Babar Sattar, Salahudin Ahmad and Kazim Hassan.
Other senior lawyers Hamid Khan, Raza Rabbani, Akram Sheikh, Rasheed A Rizvi, Amjad Shah and Kamran Murtaza were also present in the fully-packed courtroom.
Senior PML-N lawyers Rafiq Rajwana and Barrister Zafarullah also witnessed the court proceedings. Despite non issuance of notice, few senior law officers were also present there.
Muneer Malik, while arguing his client full court’s application stressed the need for justice to be done and also be seen to be done, added that no judge should be the decider of his own cause.
He said that full court comprising eligible judges should hear the main case. Further elaborating his point, the counsel said that those who might have pecuniary benefits of his client removal should not sit in the bench.
Justice Bandial visibly got upset over the counsel’s argument and said that none of the judges were partial or biased.
“Don’t treat us biased or having self-interest. Recusal is the right of a judge,” Justice Bandial said.
The judge also referred to former CJP Justice Jawwad S Khawaja’s judgment on bias as well as Article 4 of Judges Code of Conduct and said that his allegation would open the door of speculation.
Another member of bench Justice Faisal Arab questioned the objection raised by Malik on two members of the larger bench.
He asked what would be his position if a reference was filed against the CJP.
Justice Bandial asked counsel on what grounds his argument was based on.
Malik referenced precedents set by Justice (retd) Ajmal Mian and Justice Falak Shair who recused themselves from hearing similar cases in the past. He also made it clear that he was not leveling allegation of being biased against any member of the bench.
Justice Bandial said that some of the judges had decided to recuse themselves from the hearing; therefore, they were referring the matter for reconstitution of the bench as well as early fixation of the case.
Justice Sardar Tariq Masood said that before tendering his plea for recusal, he had already made up his mind not to hear the case.
Likewise, Justice Ijazul Ahsan said that 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.
He added that he had no doubt in his mind that he could uphold the oath of his office and the high ideals his office represents.
Justice Ahsan said that in view of the reservations expressed on behalf of the petitioner, which were neither justified nor had any basis, he did not consider it appropriate to hear the 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,” he said.
“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,” he added.
Currently, 16 judges are working in the apex court wherein 11 are ‘eligible judges’ to hear Justice Isa’s petition against presidential reference.