Mr Justice Faez Isa of the Supreme Court is no stranger to controversy, and even before he becomes Chief Justice of Pakistan, of which he has legitimate expectancy, his judgements have caused enough disturbance in certain circles for the government to attempt to remove him. Though he surmounted that challenge, a new one has apparently been posed by the judgement of the incumbent CJP, Mr Justice Gulzar Ahmad, which says he should not serve on any bench hearing a case in which the Prime Minister is involved, as Mr Justice Isa has filed a petition against the Prime Minister.
Mr Justice Isa has written to the registrar asking why the order was released to the press before he was sent a copy, to the extent that a copy was provided to a junior judge before him. Chief Justice Gulzar should have remembered that the power of constituting benches and allotting cases should be exercised so as to avoid conflicts of interest. Only when the CJ, out of ignorance, fails to notice, is a judge then to recuse himself. Reasons for recusal might include having heard the case while on a lower court, or having been a lawyer in the case before elevation, or even having been a party’s advocate in another case. Whatever the reason, the judge is supposed to best know whether he can do justice or not. There is not supposed to be any compulsion in recusal. The Chief Justice should realise that a quiet conversation with Mr Justice Isa might have been more productive than the issuing of an order, which does seem, as Mr Justice Isa suspects, to be more aimed at getting favorable press than anything else.
One of the more unfortunate consequences of this episode would be to lower the prestige of the judiciary in the eyes of the public. The purpose of recusals is to avert charges of partiality. Now the possibility of subservience to the executive cannot excluded. The value of the judiciary being trusted by society at large cannot be over-estimated, and anything tending to militate against this must be deplored. One of the most important, yet intangible, forces allowing courts to have their orders obeyed, is public trust. Any erosion of that trust must be deplored.
