Judges in their own case?

ISLAMABAD: Four sitting SC justices, a recently retired one and 21 serving high courts judges are vying for residential plots in the Supreme Court Bar Association Housing Scheme (SCBAHS) at a time when the apex court is hearing the society’s unique case to get a sector developed by the government for a private body in the federal capital.

What makes the case really unique is the fact that five SC justices, including the retired one who have applied for these plots, have been hearing the controversial case of the SCBAHS, which is a private venture. Sources in FGEHF have confirmed the names of the SC and High Court judges and also claimed that they have been given the list by SCBA which contains only those names who have made payments for the plots.

The matter becomes controversial also for the reason that the SCBAHS has got the SC’s direction for the concerned government departments to (i) acquire the land for the private society, and (ii) develop the sector as well.

After managing to get a ‘directive’ from former prime minister Raja Pervaiz Ashraf during his last days in power to set up a cooperative housing society, the SCBA had moved the apex court for implementation of PM orders.

Normally, such a housing society, after getting go-ahead from concerned government authorities, would have to purchase land on its own. However, SCBAHS prayed that government should “acquire land” for the said society in a specific area where thousands of citizens, natives of that area, were residing. The apex court has ordered the federal government to acquire the land, whereas government could only acquire land for its official projects. The fact of the matter is that SCBAHS is a completely private venture.

The sitting judges of the Supreme Court who have applied for a residential plot in the said housing scheme include Justice Ejaz Afzal Khan, Justice Faisal Arab, Justice Mazhar Alam Khan and Justice Sajjad Ali Shah. Similarly, almost two dozen of sitting judges of high court have also applied for the residential plots. However, a vast majority of the Supreme Court and High Court judges didn’t even apply for the plots in the said scheme.

Record shows that last time, one of the five cases relating to the SCBAHS was heard on October 10 by a three-member bench headed by Chief Justice Mian Saqib Nisar and comprising Justice Umar Ata Bandial and Justice Faisal Arab. However Justice Faisal Arab rescued himself from the hearing of this case.

Besides the SC judges, almost two dozen judges of all the high courts have also applied for the plots in SCBAHS. From Lahore High Court eight judges and an additional judge have applied for the plot in the said scheme. Similarly seven judges and one additional judge of Sindh High Court have also applied for the plot in SCBAHS. Balochistan High Court’s three judges have applied for the residential plot whereas one additional judge of Peshawar High Court and one judge from Islamabad High Court have applied for the plot in the said scheme.

Other notables who have applied for the plot in SCBAHS are Attorney General Ashtar Ausaf Ali, former Attorney Generals of Pakistan Maulvi Anwarul Haq and Anwar Mansoor Khan, Asma Jahangir, former law ministers Babar Awan and Farooq H Naik, former Chief Justice LHC Khwaja Muhammad Sharif, Justice (r) Faqir Muhammad Khokhar, Justice (r) Arif Hussain Khilji and many more.

A retired judge of the Supreme Court who had heard the cases relating to the SCBAHS has confirmed to The News that he has applied for the plot. Talking to The News on October 04, 2017, the retired judge of the Supreme Court said though he has heard the cases related to SCBAHS he doesn’t remember the content of the case. He said that he can’t remember whether he applied for the plot in the end of 2016 or in the beginning of 2017. He said he has not been part of any bench hearing the case relating to SCBAHS after he applied the plot in the said housing society. However, the record shows he had been hearing the case until September 2016.

A three-member bench headed by Justice Nasirul Mulk and comprising Justice Gulzar Ahmed and Justice Mushir Alam heard the Constitution Petition No 38/2013 SCBA Vs Federation of Pakistan on September 10, 2014. Then on September 23, 2014, the same bench headed by the then CJ heard the case but Justice Amir Hani Muslim was included in the bench in place of Justice Mushir Alam. The said petition was relating to the SCBAHS matters.

Then a two-member bench headed by Justice Nasirul Mulk and comprising Justice Ejaz Afzal Khan heard Crl.O.P No 12/2015 SCBA Vs Babar Yaqoob Fateh Muhammad etc. on April 30, 2017. This case was also relating to the SCBAHS.

On March 11, 2016, a two-member bench headed by Justice Ejaz Afzal Khan and comprising Justice Mushir Alam heard Crl.O.P No. 7/2016 SCBA Vs Raja Hassan Abbas & others heard the case which was also relating to the said SCBAHS.

Similarly, a three-member bench of the SC headed by Justice Gulzar Ahmed and comprising Justice Mazhar Alam and Justice Sajjad Ali Shah heard Crl.O.P 41/17 SCBA Vs Waqas Ali Mehmood and others, which was related to SCBAHS on April 27, 2017.

As per the record, so far, total 19 hearings with various compositions of SC benches have been made into the cases relating to the matters of SCBAHS since 2014.

On April 30, 2015 a two-member bench of the Supreme Court headed by Justice Nasir-ul-Mulk and comprising Justice Ejaz Afzal Khan gave a verdict on a case related to SCBAHS which says, “We are informed that fresh notification dated 29.04.2015 has been issued by the Land Acquisition Collector ICT for acquiring land for development of the housing accommodation for the Federal Government Employees and Member of the SCBA in villages Tamma and Mophriyan Tehsil and District Islamabad. The DG FGEHF present in the court states that the scheme for the residential portion would be developed by the FGEHF on parity basis for the employees of the federal government and members of the SCBA; that according to its policy the proceeds from the commercial area would be utilised for subsidizing cost of residential plots”.

Similarly another SC bench headed by Justice Ejaz Afzal Khan and comprising Justice Mushir Alam gave a judgement dated 13.04.2016 which states, “Learned ASC for the petitioner presented a written compromise which is placed on the record as CW-1/1. Learned ASCs representing the respondents and respondent No 4 appearing in person agree to the term and condition stipulated in the compromise mentioned above and state that this petition be disposed of in terms of the document mentioned above. Section 4 notifications in respect of 8106.6 kanals has been issued. The total land price for the purpose of acquisition is being finalised by LAC within 2 weeks. Housing foundation and SCBA shall then ensure availability of money equal to the assessed total land price of 8106.6 kanals. As soon as the money is available as stated above, Commissioner Revenue/DC Islamabad shall immediately issue the notification under section 17 (4) (6) of the Land Acquisition Act and complete the process of award of land subject to printing of gazette notification. The FGEHF shall assess the price of built up property (BUP)…..”

It is pertinent to mention here that on November 13, 2012, Prime Minister of Pakistan through his directive No. 3060, directed for launching of a housing scheme for the members of Supreme Court Bar Association (SCBA) through a Housing Scheme.

However, on July 20, 2013, the SCBA filed a constitution petition No. 38 of 2013 for implementation of the said directive of Prime Minister. The petition also prayed the government should also be “ordered” for acquisition of land required for the cooperative society. Under the law, the government could only acquire land for official purposes.

It is also important that Prime Minister’s directive did not mention acquisition of land for this purpose at all. Subsequent to filing of this petition, the Supreme Court entertained the petition for hearing and passed an order not only for implementation of directive of the Prime Minister but even for the acquisition of land. The order was altogether different from the contents of Prime Minister’s directive.

Interestingly, after passage of verdict which could not have been implemented in any way, contempt petitions were moved which all were taken by the apex court. The government’s hands were tied as 12,000 natives could not have been forced to vacate land of their ancestors just to please a few influential people and that too against the constitution and the law of the land. Government land could only be acquired by the government for its own official projects.

All subsequent benches of Supreme Court continued to ordering acquisition of land for SCBA housing society. It is important to note that the very judges who had either already applied or were in process of applying for a plot in this scheme were themselves sitting on the bench adjudicating the case.

It is to be noted that if a situation like this arises, the Supreme Court in its reported judgment PLD 2012 SC 1 has held, “Pecuniary interest in the cause, however, slight will disqualify the Judge, even though it is not proved that the decision has in fact been affected by reasons of such interest. For this reason, where a person having such interest sits as one of the Judges, the decision is vitiated”.

The Supreme Court in a famous judgment reported as PLD 2009 SC 879 foreseeing such possibilities laid down clearly, “Assumption of power by an Authority not mentioned in the constitution would be un constitutional, illegal and void ab initio and not liable to be recognised by any court, including the Supreme Court. Judge playing any role in recognition of such assumption of power would be guilty of misconduct within ambit of Article 209 of the constitution.”

Justice (r) Nasir Aslam Zahid while talking to The News said the government can acquire the land only for public purpose. “I am unaware how the SC has defined the public purpose in this case. I can’t even imagine what you are saying has really happened. How can they orderthe government to acquire land for selected few influential people and how can they apply for the plots in the same land”.

Justice Nasir said in categorical terms: “One cannot be a judge of his own cause”. “You can’t even imagine how much lucrative benefits and incentives judges in the superior judiciary are given,” Justice Nasir said adding that they (judges) are even given precious plots by the government. He said, “This must not happen and this must stop”.

Justice (r) Khalilur Rehman Khan, a former SC Judge, while talking to The News said the sitting judges of the apex court should not have applied for any plot in any such housing society. However, if they have applied for any plot in the said housing society, then they should have distanced themselves from the bench hearing the case relating to SCBAHS.

“Being a member of any society or association is not illegal but getting a plot from a housing society whose case is being heard in the apex court raises question. One cannot be a judge of his own cause as morality demands that the honorable judge should not be part of the bench hearing a case concerning him or her”, commented Justice (r) Khalilur Rehman Khan.

Justice (r) Shaiq Usmani while talking to The News said the SC judges could get the residential in SCBAHS only if they applied for it before taking oath as SC Judge.

“The moment they take oath as SC Justice, their membership of the bar association gets automatically suspended. When they no longer remain member of the bar association how can they apply for a plot in a housing scheme meant for the SCBA members. Similarly the SC judges cannot be part of the bench hearing the case related to SCBAHS if they have applied for the plot in the said housing scheme”, commented Justice (r) Shaiq Usmani.

Justice (r) Wajihuddin Ahmed said the sitting judges of the SC no longer remain SCBA members after taking oath as apex court judge. “The sitting judges of the Supreme Court are not the member of SCBA as after taking oath as SC Judges all their memberships with any associations or bodies automatically suspended. Hence, they cannot apply for a residential plot of a housing scheme launched for members of SCBA. The SC Judges can hear the cases related to SCBA. However, if they have obtained or applied for the plots in SCBAHS then they cannot hear the cases related to the said scheme”, commented Justice Wajih.

Justice (r) Nasira Javed Iqbal while talking to The News said since the SC Judges already are entitled of one plot from the government, they cannot obtain any other plot from anybody or housing scheme meant for the government employees or SCBA members.

“It is understood that after taking oath as SC judge, they are no more part of or member of any association or body. When they are not a member of any body or bar association then how can they get or apply for a residential plot in a housing society for the members of the bar association”, commented Justice (r) Nasira Javed Iqbal.

Justice (r) Allah Nawaz while talking to The News said the government can acquire land only for public purpose.

It cannot acquire the land which will benefit only few people. Indian SC is strict on this issue and has held that the government could acquire land only for its own projects whereas the opinion of Pakistani SC is different.

Abid Hassan Minto, a senior lawyer, says a judge should not be the part of a bench if there is any conflict of interest.

He said this is not the proper way of cleansing the system if there is an iota of conflict of interest in the conduct of the judiciary.