Full court to hear Justice Isa's petition

Order comes from a seven-judge larger bench of the Supreme Court

ISLAMABAD: A full-court bench of the Supreme Court will hear its judge Justice Qazi Faez Isa's petition against the presidential references filed against him.

The development comes on a constitutional petition filed by Justice Isa requesting the apex court to form a full-court bench comprising all eligible judges to hear his petition against the presidential references filed against him over the alleged non-disclosure of assets in his wealth statement.

"In the circumstances, to further promote transparency in the proceedings and confidence of all persons interested in these proceedings, it is directed that a full court may be constituted in these connected matters," read an order passed by a seven-judge larger bench of the apex court led by Justice Umar Ata Bandial in Justice Isa's case. The other members of the larger bench included Justice Maqbool Baqar, Justice Manzoor Ahmad Malik, Justice Faisal Arab and Justice Mazhar Alam Khan Miankhel.

"The file may be placed before the Hon'ble Chief Justice of Pakistan for passing appropriate orders," it added.

"To explain the expression 'eligible judges', the learned counsel has, with utmost respect, requested that learned judges on the bench who may possibly benefit from the dismissal of this petition should kindly recuse from the proceedings."

The order further read that Justice Isa had underscored that the possibility of the judge being swayed over a personal advantage was a ground for recusal under Article 4 of the Code of Conduct of Judges of the Supreme Court and the High Courts of Pakistan. The court noted that in the present case no such interest has been pointed out by the counsel. The court further said in fact Justice Isa's plea was based on the "'contingent, prospective, speculative possibility of the office of chief justice of Pakistan being not occupied by the petitioner in the year 2023 and for the ineligible judges to be awaiting that eventuality so as to benefit there from".

"The submissions made by the learned counsel, however, do not disclose such an interest," the order read. "On the other hand, the suggestion is that a tangible interest may accrue four years later. It involves a contingent, prospective and speculative interest. No precedent to hold such a future contingency to be a disqualifying factor for a Judge has been cited by the learned counsel."

Out of the 16 SC judges, 10 will be eligible to hear the case since three judges are members of the Supreme Judicial Council (SJC) hearing the presidential references against Justice Isa while Justice Sardar Tariq Masood and Justice Ijazul Ahsan on Tuesday recused themselves from the CJP-constituted seven-member larger bench. The sixth judge is Justice Isa himself.

Interestingly, the two judges who had recused themselves from hearing the case have also endorsed the bench's order for the formation of a full court.

The apex court's order has triggered a debate.  A senior lawyer, who has been practicing in the apex court since the 1980s and appeared in many high profile cases, said: "It's going to be for the first time that a bench has directed the chief justice of Pakistan to constitute a full court. Otherwise, judges usually recommend or simply refer the matter to the chief justice for the constitution of a larger bench. This is something extraordinary."

The lawyer added that such directives were not even given to the chief justice of Pakistan in the cases of Malik Asad and Iftikhar Muhammad Chaudhry.

In the 1988 Malik Asad Ali case, then acting Chief Justice Ajmal Mian had refused to be part of a full court since he had issued an administrative order for the constitution of a larger bench and he would also be the beneficiary in case then Chief Justice Sajjad Ali Shah was removed.

Justice Isa had requested that the case be heard by a full court bench comprising all eligible judges of this court since the matter pertained to reference against a Supreme Court judge and as per precedent of this court in the case of CJP Iftikhar Chaudhry vs President of Pakistan, PLD 2010 Supreme Court.

Another lawyer said though the language of the court order was unusual, but it had happened in both the Malik Asad and Iftikhar Muhammad Chaudhry and three other cases wherein directives for the formation of a full court were passed by an apex court bench itself.

Talking about direction, another senior lawyer believes that it has never happened before, “actually these judges have decided for full court on their own and then asked office to place the file before the CJP to pass appropriate orders.” He said that full court comprises all the apex court judges, including those who have recused and those who are members of the SJC. “Any bench minus any sitting judge is larger bench.”