The February 11, 2021 order by the Supreme Court (SC) barring Justice Qazi Faez Isa from hearing cases concerning Prime Minister (PM) Imran Khan has elicited a fair bit of concern from the lawyers’ community. Pakistan Bar Council (PBC) vice chairman Khush Dil Khan and Peshawar High Court Bar Association president Khalid Anwar Afridi have both weighed in, urging the honourable SC to revisit/review its order in the larger interest of the smooth functioning of the SC and safeguarding the independence of its judges so that they can discharge their constitutional duties to dispense justice without fear or favour. Khush Dil Khan has proposed the convening of a PBC meeting at the earliest to discuss the situation in the light of its importance and significance. The SC order came during the hearing of the case related to the proposed plan to distribute Rs 500 million development funds among the ruling Pakistan Tehreek-e-Insaaf (PTI legislators. PM Imran Khan has dubbed the media reports on the matter incorrect. The SC order argued that to uphold the principle of no bias and impartiality, it would be in the interest of justice that Justice Isa should not hear matters involving the PM, citing the moving of a petition against the PM by Justice Isa in his personal capacity. But the strange and unprecedented order was not where the matter apparently ended. On February 12, 2021, Justice Isa wrote to the SC Registrar, with copies to Chief Justice of Pakistan (CJP) Gulzar Ahmed and all the SC judges, questioning why the February 11, 2021 order was not shared with him before its release to the media. Dubbing the entire incident as shocking, Justice Isa also wanted to know why the settled practice of sending an order/judgement to the next senior judge was not followed, depriving him thereby of the opportunity to give his views and/or signature on the order (if he concurred with it).
This incident is unprecedented, overturning as it does the long-standing practice of our courts as well as the British and US courts stretching back over time. Although the CJP has the sole prerogative to form benches, normally it is left to the judges themselves to evaluate whether their presence on a particular bench would not be appropriate, leading them to recusing themselves. The idea of ‘forced recusal’ (and that too, based on the roster of SC benches for the week ending February 19, 2021, across the board) does not form part of the judicial practice of any country. The reasons are obvious. By the time a judge rises to the status of the apex court, it seems logical that he/she would have attained a level of knowledge, experience and wisdom to be the best judge of the appropriateness or otherwise of hearing a particular case. No bench even if it is headed by the CJP himself is expected to ‘decide’ another brother judge to be recused. The respect, dignity and credibility of the court depend on adherence to its best practices, not the ‘invention’ of new rules. The fact of the matter is that Justice Isa is under a cloud for quite some time. Having weathered the presidential reference moved against him, Justice Isa regretfully remains in the shadows. On the appeal of the Bar Councils, and in the interests of the respect, dignity, credibility of the SC, the February 11 order merits a revisit/review by the SC.