The Supreme Court of Pakistan website has a section called “Latest Judgments”. On February 11 in CMA 490/2021 an order was uploaded on the website (the “Order”). The author judge is identified as the Chief Justice of Pakistan (CJP).

The Order was passed in a case being heard by a bench of five Judges headed by the CJP. It is not clear from the uploaded Order how many Judges agreed with and signed the Order. A subsequent communication to the registrar from one member of the bench, Justice Isa, states that he was never shown the Order and did not sign it. Normally orders and judgments that are uploaded on the website indicate at their foot how many judges have agreed with and signed the same. The Order does not show this.

When a matter is placed before a bench of the court comprising more than one judge, only the bench can pass orders or judgements. The members of the bench do not have to agree. Dissent is often expressed in scathing terms. A judge from America, Justice Scalia, was famous for his caustic dissents. Majority opinions were characterised by him as “preposterous”, “pernicious”, and based “on the flimsiest of evidence”.

Once constituted, a bench cannot be dissolved or reconstituted by the chief justice in exercise of his administrative powers, absent a member withdrawing or otherwise ceasing to be available. Where an order is issued without having been shared with all members of the bench hearing the matter, it would prima facie appear not to have the legal status of an order of that bench. For a decision of the bench, all members must consider the matter and give a decision – albeit a simple concurrence or dissent.

The Order in this case recites the explanations provided by the governments regarding distribution of funds to parliamentarians. In Paragraph 6 it notes that Justice Isa had “sought to place on record photocopies of certain documents statedly received by him” through WhatsApp. The attorney general objected to this unusual step by the judge on the basis that the authenticity of the documents was questionable. He submitted that the judge would thus become a “complainant” and it would therefore not be appropriate for him to hear the matter.

The Order notes that in these circumstances the CJP “observed” that it would not be “proper” for the judge to hear the matter “considering that he had already filed a petition against the prime minister of Pakistan, in his personal capacity”. The Order concludes that, “to uphold the principle of un-biasness and impartiality, it would be in the interest of justice that the Hon. Judge should not hear matters involving the Prime Minister of Pakistan”.

An independent judiciary is an essential element of our constitution. It guards our fundamental rights. Dissenting judgments or vigorous disagreement between judges on legal issues before them do not undermine judicial independence.

Although merely an observation of the CJP, the fact that it has been reflected in the Order is significant. Questions of recusal are customarily left to judges to decide themselves. In the Order, the CJP has made an observation questioning the propriety of a fellow judge continuing to hear the matter or any other matter “involving” the PM. It is not clear whether a case “involving” the PM means any case involving the government which the PM heads. If it does, Justice Isa’s participation in any bench hearing a case involving the Federation has been rendered questionable by the Order.

The only petition Justice Isa filed in his “personal” capacity was under Article 184(3) to challenge the reference against him by the government. All ten judges of the Supreme Court on the bench held that the reference against him was malicious and unlawful. The prime minister was impleaded as a respondent in this case since it was based on his advice that the reference was filed by the president. Justice Isa’s complaint was against an act of the PM in his official capacity. The Order may result in a situation where a government can by the mere act of filing a malicious reference stop an independent judge from hearing cases involving the government.

Judges should not hear cases where they have a conflict of interest or there is a possibility of bias. It is not always easy to decide when such a situation exists. Some cases are straightforward. Where the judge is related to a party or has a financial or other interest in the outcome, the judge should not hear the matter. Other cases are less clear. What if the judge has previously expressed an adverse opinion regarding a party’s conduct? What if a relative of a judge would benefit indirectly from a decision? Given the uncertainty surrounding these grey areas, where an objection of possible bias is raised, judicial caution frequently leads to recusal. This ensures that justice is seen to be done.

This tradition of judicial recusal cannot be misused by a party to obtain a bench or judge of their choice. No litigant has a right to choose their judge. Simply asserting that there is a possibility of a perception of bias is not enough. There must be evidence to indicate that the judge is conflicted or that his impartiality may be viewed as compromised. If there is, it is left to the concerned judge to gracefully withdraw.

An independent judiciary is an essential element of our constitution. It guards our fundamental rights. Dissenting judgments or vigorous disagreement between judges on legal issues before them do not undermine judicial independence. The situation is different if the propriety of the conduct of a judge is openly questioned by colleagues or if there is a failure to follow established practices; this risks undermining the moral authority of the entire court. When that happens, regardless of where we stand on a particular issue, we all suffer.

The Code of Conduct for Judges also appears on the website of the Supreme Court. Article IX of this code provides that in his relation with other judges a judge should “act always for the maintenance of harmony within his own court”. There is wisdom in this prescription.

The writer is an   Advocate of the Supreme Court of Pakistan. Email: a.hosain@fge-eh.com