Justice Mansoor Ali Shah says appropriate to recuse from bench amid doubts

• Justice Mansoor Ali Shah's recusal came after govt's objection.
• Appropriate to recuse if doubts arise: Justice Shah.
• "Petitioner is admittedly my relative," judge confirms in note.

ISLAMABAD: After deciding to recuse himself from the bench hearing a plea against the trial of civilians in military courts, senior Supreme Court judge Syed Mansoor Ali Shah said it is appropriate to take the step if doubts arise in an ordinary person's mind about a judge's impartiality.

Headed by Chief Justice Umer Ata Bandial, a six-member bench of the Supreme Court issued a written order addressing the petitions challenging civilians' trials in military courts.

Meanwhile, the government raised objections over Justice Shah's inclusion in the bench following his personal association with the petitioner and former chief justice Khawaja.

In his separate note, Justice Shah said that judges should not readily accede to the request for their recusal from hearing a case and decide the matter of their recusal after properly weighing the ground agitated for making such a request.

Justice Shah said that where it was apparent that the perception of impartiality was being created for some ulterior motive sans any sound basis, the judge must not yield to such strategy and abdicate the performance of his duty.

But if such a request is based on some reasonable ground that may genuinely raise doubt in the mind of a common person about the impartiality of the judge, the safest course for the judge is to accept such request in the larger interest of upholding public trust in the integrity and impartiality of the court, he observed.

“In the present case, as the said petitioner is admittedly my relative, a common person may not understand the difference between a petition filed in the public interest and a petition filed for personal interest,” the senior judge added.

He further said that in the present case, he found it preferable to accept the request and recuse himself from hearing the case.

“Keeping in view the above principles and reasons, in order to safeguard the public trust in the integrity and impartiality of the court, I recuse myself from hearing these petitions on the objection raised by the learned Attorney-General for Pakistan on instructions from the Federal Government,” Justice Shah said.

The senior judge said it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

“I strongly believe in this dictum of Lord Hewart and have expressed similar views in several cases that the foundations of the judicial institution stand on, and its real strength lies in, the public trust which gives to its decisions legitimacy and public acceptance,” the judge observed.

Justice Shah further said that anything which undermined or even tended to undermine the public trust in the integrity, impartiality and independence of the judiciary must be circumvented.

“The petitioner in one of these petitions, namely, Jawad S. Khawaja, the former Chief Justice of Pakistan, is my relative. The legal fraternity, I believe, knew it and for those who did not I disclosed this fact at the first hearing of these petitions in open court on June 22 and asked whether anyone had any objection to my hearing these petitions including the learned Attorney-General for Pakistan.

"However, counsel for the petitioners in all these petitions and the learned Attorney-General for Pakistan replied that they had no objection,” said Justice Mansoor Ali Shah.

The judge further said that Article 4 of Code of Conduct to be observed by the judges of the supreme court and high courts mandates that a “Judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friend.”

The said petitioner has, however, filed the petition in the public interest, not involving any interest of his own as he is not to be personally affected by the decision of these cases in either way. “I, therefore, was of the view that the said Article was not applicable in this case, still I thought it right to ask the parties, at the start of the hearing, whether they had any objection to my sitting on the bench and hearing these petitions,” Justice Shah said.

“I did not recuse myself from hearing these petitions on my own, as I thought that my recusal without any objection from any of the parties may amount to abdication of my duty to preserve, protect and defend the Constitution in a matter of constitutional significance and public importance involving the question of enforcement of the fundamental rights to life, liberty, dignity, due process and fair trial,” the judge observed.

He said the judicial impartiality upholds public trust, engenders predictability in the law, ensures fair trial, upkeeps the rule of law and safeguards democracy.

“The principle of judicial impartiality, therefore, is not merely a moral imperative but a practical necessity to ensure justice, uphold democratic values, protect citizens’ rights, and maintain societal order,” Justice Shah said.

Originally published in The News