Khudayar Mohla –
A seven-member larger bench of the top court on Tuesday decided to send the matter of forming a new bench to hear the presidential reference against Justice Qazi Faez Isa to the Chief Justice whereas expressing their inability to hear pleas, seeking dismissal of presidential reference against sitting judge of the Supreme Court Justice Qazi Faez Isa on Tuesday, two judges of the top court Justice Sardar Tariq Masood and Justice Ijazul Ahsan recused themselves from a seven member larger bench in the matter.
President Dr.Arif Alvi has filed reference before Supreme Judicial Council (SJC) against Justice Qazi Faez Isa over alleged non-disclosure of assets. Justice Qazi Faez Isa and Supreme Court Bar Association have challenged proceedings of the Council through filing petitions, seeking dismissal of the presidential reference to which Supreme Court has recently formed a seven-member larger bench to hear the pleas.
On Tuesday, seven-member larger bench of the top court 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 took up the matter.
Appearing before the bench on behalf of Justice Qazi Faez Isa, senior lawyer and former Attorney General for Pakistan Munir A. Malik raised objection over the bench saying two judges of the bench Justice Sardar Tariq Masood and Justice Ijazul Ahsan should not sit in the bench on account of beneficiary of his client’s removal.
It is pertinent to mention that both the judges are likely to benefit in case Justice Qazi Faez Isa is removed from the service in consequence to adverse decision of the SJC in the matter as one will serve as Chief Justice for six months, while the other judge tenure as Chief Justice of Pakistan would be extended.
During course of proceedings, Munir A. Malik apprised the bench about his client’s instruction that the judiciary’s dignity should not be compromised; adding two judges of the bench should recuse themselves from hearing the case in hand.
Responding to objection of the petitioner, Justice Umar Ata Bandial observed that no judge of this court was biased and asked from the counsel, “Which judge is the one who can be biased?” To which Munir A. Malik submitted that he was not terming any judge of the top court as biased but the judges who may be beneficiary in decision of the current matter, ought not to be part of this bench.
Malik further argued that the court function is not only to dispense justice but to do justice in the real sense saying if a judge is direct beneficiary in a matter, he should not hear the case on the grounds that hearing such case would be a violation of the code of conduct.
Justice Sardar Tariq Masood plainly said that if personal interest creates obstruction in performing duties, a judge should recuse himself from the bench in accordance with law whereas Justice Ijazul Ahsan observed it was unfortunate that he had been objected by the petitioners while one of the petitioners himself is a judge of the Supreme Court. Justice Ijazul Ahsan was of the view that objection has nothing to do with logic.
After hearing of the case and recusal of two judges from the bench, Justice Umar Ata Bandial referred the matter to the Chief Justice for constitution of new bench to hear identical pleas in the matter.
http://www.supremecourt.gov.pk/web/user_files/File/Const.P._17_2019.pdf
