senator S M ZAFAR - The other day an honorable Judge Mr Justice Jawwad S. Khawaja of the Supreme Court of Pakistan in some case made a statement to the effect:-

“Instead of recusing myself from the bench, I would resign and go straight to my home”. (The News dated July 30, 2015)

I waited a few days hoping that the learned Judge from the Office of the Supreme Court will issue some denial or explanation of his statement but none has been coming so far which affirms that not only the statement has been made by the learned Judge but he carries the impression that this is a sound statement.

Therefore the statement in national media prompted me to contribute this article, with a view to invite an academic and intellectual discussion on subject of ‘judicial recusal’. Hence the facts of the case are not relevant; nor I am going to burden the column with many citations (some are added). It is more important to capture the principle of the issue and the foundation of the theory of judicial recusal.

Referring again to the statement of the learned judge who went on to add: “To resign only take 5 minutes, after that I will go straight away to home, I might not even go to my chamber”.

Is recusal by a judge such a sin or taboo that the thought of it forces the judge to leave the office “and not go even to his chamber”?

How does 1973 Constitution treats judicial recusal. The highest body to determine the conduct of a judge of Supreme Court consists of inter-alia 3 senior most judges of the Supreme Court and “if any judge (member of SJC) has to face the charge of conduct, the judge of Supreme Court next in seniority shall act in his place.” It leaves no discretion with a judge to decide whether he recuses himself or not. (Art 209(3))

The code of conduct for the Judges of the Supreme Court inter alia provides “A judge should decline resolutely to act in a case involving his own interest” and that “justice should not only be done but is also seen to be done.” (Article IV)

Law of Contempt of Court enunciates that a judge who takes notice of contempt or with regard to whom judicial contempt is alleged to have been committed, either shall not try the case (Section 11). Even the corporate law substantively provides for similar requirement. In such situation a number of Judges and Directors have recused themselves.

Rationale for refusing to recuse is that even when bias is alleged against the judge, it will not influence him, or:-

“I have confidence in myself that I can do justice irrespective of the bias”.

(Some Urdu papers have quoted the judge making a similar statement that “I have full confidence in myself”).

Let us see what Justice Frank had said, on such confidence in a famous case.

“Much harm is done by the myth that merely by putting on a black robe and taking the oath of office as a judge, a man ceases to be human being and strips himself of all predilections and becomes a passionless thinking machine. The concealment of the human element in the judicial process operates in an exaggerated manner”.

Aforesaid myth has been termed as a ‘noble lie’. Judge Frank, therefore, recommends that judges should “avow that they are human” and “human element allows bias to creep in”. In the words of Professor Harry Abraham “when any doubt, do not sit”. Yet no one recommend resignation.

Judicial recusal is now favourably recommended in most of the democratic countries and its foundation being three laudable principles which are accepted as legal maxims:

a) No one can be a judge in his own cause.

b) Justice should not only be done but shall manifestly and undoubtedly seen to be done.

c) Bias vitiates the proceedings including the conclusion.

It is believed that these maxims ensure fair trial.

Concept of fair trial is included as a fundamental right (Article 10-A of the Constitution). It may be appropriate to have a brief survey of the jurisprudence of some of the other countries regarding the judicial recusal.

Judicial recusal

USA

In US, general principle is, “the judge is expected, after hearing the reasons for bias, to recuse himself if reasonable apprehension of bias is shown not as the relevant judge perceives it but how a reasonable litigant apprehends”.

USA in 1974 passed the law (28 USCA Section 455) and it reads as follows:-“Justice/judge of the US shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned”.

The touchstone for recusal or otherwise is not the “confidence of the judge in himself.”

Most often quoted case is of Justice Scalia of SC, who recused himself from a case where bias was alleged against him without entering into the discussion on alleged bias.

It was observed yet in a famous case that “under our precedence, there are objective standards that require recusal when the probability of actual bias is there. Hence in all the circumstances of the case, due process mandates recusal.”

UK

The House of Lords in a well-known Pinochet case set aside its own previous judgement as one of the judges; Lord Hoffmann, was shown to have a remote bias. Lord Hoffmann was praised in this very judgment to be an upright man and honest judge to a limit, yet a reasonable bias did appear and the whole judgment was held to be null and void. According to Lord Brawn Wilkinson, the author of the judgement, “The fundamental principle is that a man may not be judge in his own cause” and that “by some way the Judge’s conduct or behavior apprehends a suspicion that the Judge is not impartial, the judge must recuse himself.” This principle is generally adhered to in other democratic countries.

Famous lawyer and scholar, Mr A G Noorani has contributed an article in daily Dawn ‘judges recusal’. He has referred to a definitive work by Grant Hammoud who gave a terse advise to judges, “prudence naturally leans on the side of being safe rather than being sorry”.

It is the litigant who brings his case to get justice and if he suspects that a Judge may not hear his case fairly because he has a ground for bias, then the act of recusing by a Judge does not in any way harm the independence of the judiciary or hurt the integrity of a Judge.

As a matter of fact, the judges who recuse themselves are duly respected and are considered to be independent and interested in justice and not the case. The decision of the court nor the judge is undermined by acceptance of bias of the judge. It cannot be considered as undermining the integrity of the Court. I know a number of cases during my practice where judges have recused themselves when some reasonable bias had been shown. Justice Nasir-ul-Mulk when issue of bias was raised before him, stated in Court that although they are remote, yet I recuse. He was respected not only in the eyes of the public but also amongst the lawyers. After recusal he did not retire nor went home, instead he rose to be Chief Justice of the Supreme Court of Pakistan earning respect from Bar and public. A recent example is that of former Chief Justice Iftikhar Muhammad Chaudhry who recused himself in the case of Dr Arslan Iftikhar (PLD 2012 SC 664) and Justice Jawwad S Khawaja contributed his opinion by penning down that “Indeed, it is the cornerstone of the administration of justice in this country that all people, whether they appear to us innocent or guilty, are entitled to the due process”. (Justice Ajmal Mian is yet another glorious example).

I hope and pray that no judge will believe that he is a passionless thinking machine and commit a noble lie.

The writer is a Senator and senior advocate, Supreme Court of Pakistan.