Neither noble nor true
There is no lawyer in the country who would believe that the campaign is led by anything other than malice
The writer is an advocate of the Supreme Court
While other nations rejoice in the successful completion of long and illustrious careers of their celebrated generals and judges, the sadistic lot that we are, we cannot let one of the most learned, principled and courageous chief justices in our history retire without publicly questioning his integrity. And while the attacks have been couched as the utterances of an impartial oracle speaking from atop the moral hilltop, there is no lawyer in the country who would believe that the campaign is led by anything other than malice, something sadly unbecoming of such senior lawyers whose acumen and long, illustrious careers every lawyer can only dream of emulating.
What is most unfortunate is that the basis of the attack is not any judgment or order of the honourable judge in question but a mere one-sentence news channel ticker wherein the judge has commented that he would rather go home than recuse himself from hearing a particular case.
His fault: refusing to surrender to the whim of a powerful litigant who is insisting that he recuse himself from hearing his case. And the most powerful legal voices, without disclosing their obvious position of partiality in the matter in question, on the basis of selective quotations from foreign judgments, are telling us that by not letting the 'litigant' dictate the composition of the bench, the learned judge is acting both improperly and illegally, a proposition that has been expressly rejected by the superior courts of common law countries as well as our own Supreme Court.
Through decades of various judgments on this point, the standard that is currently being used by the superior courts of the UK, New Zealand, Canada, Scotland and Australia for determining whether a particular judge stands disqualified on the basis of judicial bias is "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased" (House of Lords — Magill v Porter 2002). A litigant's belief or desire is absent from this test.
As for the United States, Section 455 of United States Code Title 28 that deals with disqualification of a judge from hearing any case due to judicial bias also provides for a “reasonability” test and US courts have consistently applied the test of “reasonable person” describing him as an “objective disinterested observer who is privy to the full knowledge of the surrounding circumstances”.
A litigant not being a disinterested person, his mere views or desire is irrelevant under US law on judicial bias.
In addition to the above, while readers have been reminded that when confronted with allegations of bias, Justice Scalia of the US Supreme Court recused himself from a case, another important case of the same judge has been conveniently omitted. In Dick Cheney v United States, the same Justice Scalia refused to recuse himself from hearing that case even though Justice Scalia had gone duck hunting with Cheney while the case was pending before the Supreme Court.
Through a detailed judgment, Justice Scalia held that the reasonable observer must be “informed of all the surrounding facts and circumstances,” and, in his view, various newspaper editorials that had questioned his impartiality were not only factually inaccurate, they also lacked understanding of relevant judgments on judicial bias.
After carefully going through leading judgments on judicial bias from major common law superior courts, it is safe to conclude that the current criterion for determining judicial bias is whether a reasonable, disinterested third person — not a litigant — would view a judge as biased or not.
And courts have themselves gone on to explain as to why a litigant's mere view or desire has to be excluded from determining whether a judge is disqualified from hearing a particular case on ground of judicial bias.
For instance, when dealing with this very question in re Allied-Signal Inc. 1989, Justice Breyer of US First Circuit Court stated:
“When considering disqualification, the district court is not to use the standard of ‘Caesar's wife’, the standard of mere suspicions. That is because the disqualification decision must reflect not only the need to secure public confidence through proceedings that appear impartial, but also the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking.”
As for Pakistani law on judicial bias and recusal, the critics seem to have omitted to take note of various clear judgments of the Supreme Court that bind the honourable judge in question. For instance, a three-member bench of our Supreme Court, in CPs-328 and 329 of 2013, where General Musharraf sought recusal on the basis of bias, stated the law in the following words:
"… Courts … cannot decide questions of perceived bias by accepting the individual and personal views of an aggrieved petitioner and thus recuse from a case ... if a subjective perception of bias could be made a bias for recusal of a Judge ... it would be very simple for any litigant not wanting his case to be heard by a particular Judge to start hurling abuses at such Judge and thereafter to claim that the Judge was biased against him."
In a subsequent case, when the same honourable judge who is now being reminded of his legal obligation to recuse himself from a case just because a litigant wants him to do so, faced an identical request from another litigant, he referred to the above judgment and held that "all litigants at times make attempts to avoid hearing before certain benches but at times such attempts are not well intentioned”.
The current campaign of vilification also, unfortunately, cannot be said to be well-intentioned. In the words of Justice Breyer, it is perhaps nothing more than an attempt at “manipulating the system for strategic reasons”.
Published in The Express Tribune, August 20th, 2015.
What is most unfortunate is that the basis of the attack is not any judgment or order of the honourable judge in question but a mere one-sentence news channel ticker wherein the judge has commented that he would rather go home than recuse himself from hearing a particular case.
His fault: refusing to surrender to the whim of a powerful litigant who is insisting that he recuse himself from hearing his case. And the most powerful legal voices, without disclosing their obvious position of partiality in the matter in question, on the basis of selective quotations from foreign judgments, are telling us that by not letting the 'litigant' dictate the composition of the bench, the learned judge is acting both improperly and illegally, a proposition that has been expressly rejected by the superior courts of common law countries as well as our own Supreme Court.
Through decades of various judgments on this point, the standard that is currently being used by the superior courts of the UK, New Zealand, Canada, Scotland and Australia for determining whether a particular judge stands disqualified on the basis of judicial bias is "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased" (House of Lords — Magill v Porter 2002). A litigant's belief or desire is absent from this test.
As for the United States, Section 455 of United States Code Title 28 that deals with disqualification of a judge from hearing any case due to judicial bias also provides for a “reasonability” test and US courts have consistently applied the test of “reasonable person” describing him as an “objective disinterested observer who is privy to the full knowledge of the surrounding circumstances”.
A litigant not being a disinterested person, his mere views or desire is irrelevant under US law on judicial bias.
In addition to the above, while readers have been reminded that when confronted with allegations of bias, Justice Scalia of the US Supreme Court recused himself from a case, another important case of the same judge has been conveniently omitted. In Dick Cheney v United States, the same Justice Scalia refused to recuse himself from hearing that case even though Justice Scalia had gone duck hunting with Cheney while the case was pending before the Supreme Court.
Through a detailed judgment, Justice Scalia held that the reasonable observer must be “informed of all the surrounding facts and circumstances,” and, in his view, various newspaper editorials that had questioned his impartiality were not only factually inaccurate, they also lacked understanding of relevant judgments on judicial bias.
After carefully going through leading judgments on judicial bias from major common law superior courts, it is safe to conclude that the current criterion for determining judicial bias is whether a reasonable, disinterested third person — not a litigant — would view a judge as biased or not.
And courts have themselves gone on to explain as to why a litigant's mere view or desire has to be excluded from determining whether a judge is disqualified from hearing a particular case on ground of judicial bias.
For instance, when dealing with this very question in re Allied-Signal Inc. 1989, Justice Breyer of US First Circuit Court stated:
“When considering disqualification, the district court is not to use the standard of ‘Caesar's wife’, the standard of mere suspicions. That is because the disqualification decision must reflect not only the need to secure public confidence through proceedings that appear impartial, but also the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking.”
As for Pakistani law on judicial bias and recusal, the critics seem to have omitted to take note of various clear judgments of the Supreme Court that bind the honourable judge in question. For instance, a three-member bench of our Supreme Court, in CPs-328 and 329 of 2013, where General Musharraf sought recusal on the basis of bias, stated the law in the following words:
"… Courts … cannot decide questions of perceived bias by accepting the individual and personal views of an aggrieved petitioner and thus recuse from a case ... if a subjective perception of bias could be made a bias for recusal of a Judge ... it would be very simple for any litigant not wanting his case to be heard by a particular Judge to start hurling abuses at such Judge and thereafter to claim that the Judge was biased against him."
In a subsequent case, when the same honourable judge who is now being reminded of his legal obligation to recuse himself from a case just because a litigant wants him to do so, faced an identical request from another litigant, he referred to the above judgment and held that "all litigants at times make attempts to avoid hearing before certain benches but at times such attempts are not well intentioned”.
The current campaign of vilification also, unfortunately, cannot be said to be well-intentioned. In the words of Justice Breyer, it is perhaps nothing more than an attempt at “manipulating the system for strategic reasons”.
Published in The Express Tribune, August 20th, 2015.