Monday, May 07, 2007

Judges and the Caesar's wife

There is a widely accepted principle of natural justice that there should be no hint of bias or prejudice in the administration and application of law.

British law (much of which was inherited by Pakistan) has over the centuries evolved several principles of natural justice, three of the best known being:

"Justice should not only be done but manifestly and undoubtedly be seen to be done"
(Lord Hewart, C.J - R. v. Sussex Justices, 1924)

"Judges, like Caesar's wife must be above suspicion"
(Lord Bowen, J - Leeson v. General Council of Medical Education & Registration, 1889)

Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking 'the Judge was biased'
(Lord Denning, Master of the Rolls - Metropolitan Properties Ltd. v. Lannon, 1969)

Having laid out these legal principles I will now come to the issue currently causing a stir in Pakistan. Tonight’s TV news and some talk shows were focusing on the following report published in the News last Saturday:

A lunch that raised eyebrows
By Ansar Abbasi

ISLAMABAD: Two serving judges of the Supreme Court of Pakistan had lunch with the government’s top legal adviser and the attorney-general at the Islamabad Club on Thursday.

It might have gone unnoticed during ordinary days, but in the middle of a lingering judicial crisis, such a gathering of the government’s top legal minds and the apex court judges raised many eyebrows in the dining hall of the club.

Senior Adviser to the Prime Minister, Syed Sharifuddin Pirzada, and Attorney-General Makhdoom Ali Khan were seen having lunch with Justice Muhammad Nawaz Abbasi and Justice Faqir Muhammad Khokhar of the Supreme Court. Both of these judges have served as federal law secretary under Gen Musharraf in the post-Oct 12, 1999 scenario.

Though Justice Abbasi and Justice Khokhar are the Supreme Court judges, none of them is, at present, either member of the Supreme Judicial Council (SJC) that is hearing the reference against Chief Justice Iftikhar Muhammad Chaudhry or part of the five-member SC bench which is seized with the CJ’s constitutional petition against the presidential reference.

A source, who was also sitting in the main dinning hall of the Islamabad Club when the SC judges and the government’s top legal advisers were having meal, said that prominent faces present in the surrounding also included Tehrik-e-Insaaf chief Imran Khan and former interior secretary Tasneem Noorani. They were sitting at different tables in their respective companies. The source said that he noticed the four in the dinning hall at 2.15pm and when he left at almost 3pm after finishing his lunch they were still sitting there.

Pirzada’s staff said that on Thursday the attorney-general came to Pirzada’s office to take him for lunch. Makhdoom Ali Khan was formally consulted by the government before filing the reference against the chief justice on March 9. However, Pirzada’s advice was not formally sought.

Pirzada had initially refused to represent the government against the chief justice before the SJC. However, he later decided to defend the president in the CJ’s constitutional petition, challenging the reference and the composition and constitution of the SJC as well.

Meanwhile, in an interesting slip-up on April 18, 2007 at exactly 3.14pm this correspondent received on his mobile phone a call from the office of a senior authority sitting in the Presidency. The operator was under the impression that he had dialled the number of a sitting judge of the Supreme Court. He insisted that the mobile phone should be handed over to the Justice Mr … so that he could put him through the authority. When told that the recipient of the call is not a judge but a journalist, he immediately said sorry and disconnected the phone.

Chief Justice Iftikhar Chaudhry’s legal counsel, Barrister Aitzaz Ahsan, has now publicly demanded that Justice Muhammad Nawaz Abbasi and Justice Faqir Muhammad Khokhar should not make themselves available to sit on the full bench of the Supreme Court now scheduled to hear his client’s appeal.

Do you think it is fair request?

I certainly do.

According to widely accepted judicial practice these two judges should not have met Syed Sharifuddin Pirzada and Attorney-General Makhdoom Ali Khan, considering that these two are the leading players on the government’s side in the Chief Justice reference case.


Anonymous said...


I agree with Onlooker about the conflict of interest here. But all the high legal principles seem not to be a vital force in the operational ethics of Pakistan. It is well-known fact that our judges also try to be “politically correct” and therefore, personal prejudices and bias are part and parcel of our “Political Court”. For those engaged in the pursuit for justice and fairplay, our Courts to a great extend are themselves the necessary evil, and rarely on the side of the progressive and humanist causes. That’s why you see many judges and lawyers like Pirzada who are the carpetbaggers who have abused the Constitution. CJP-Chaudhry may have also played both sides of the fence, but by Pakistani standards is a rare breed and can be considered an exception, particularly for his current stance against the status quo.

AAS said...

Agree with jusAthot. I had written down in an earlier post why we shouldn't consider CJP-Chaudry a hero...even though i do believe what he is doing now is great and am supportive of his cause..but like you said he has played both sides of the fence....and i fear if he was given the chance to rule the country sooner or later he would also become consumed with power and think only he could save Pakistan.

I said this before in one of my postings....where were the lawyers when Musharraf first took over? Where were the lawyers when the military crushed the constitution? I mean you can apply these two questions in many different dates of our history and they would still be relevant.

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