ISLAMABAD - Supreme Court of Pakistan Sunday delisted the Punjab election tribunals case which was fixed for hearing today. A five-member bench of the SC headed by Chief Justice of Pakistan Justice Qazi Faez Isa was to hear the appeals of Salman Akram Raja and others on Monday (August 19). However, the apex court delisted the hearing of appeals due to non-availability of Justice Jamal Khan Mandokhel.
In this matter, Advocate Salman Akram Raja, who had contested the general elections on the PTI ticket, Friday also filed an application requesting CJP Faez to recuse from hearing the appeal against the Lahore High Court (LHC) verdict regarding the appointment of sitting judges of the Lahore High Court as Election Tribunal under section 140 of the Election Act.
The SC bench on the last hearing (July 4, 2024) had suspended the Lahore High Court’s judgment and its notification for the appointment of Election Tribunals in the Punjab province for the trial of election petitions. It ordered the Election Commission of Pakistan (ECP) to uphold a meeting with new Chief Justice LHC (Justice Aalia Neelum) regarding appointment of Election Tribunals.
The LHC judgment declared that in the process of consultation between the Chief Justice of the High Court and the Election Commission of Pakistan (ECP) for the purpose of appointment of sitting judges of the High Court as Election Tribunals under Section 140(3) of the Elections Act, 2017 the opinion/view of the Chief Justice of the High Court concerned must have pre-eminence.
It, therefore, held that the ECP is constitutionally bound to appoint the judges nominated by the Chief Justice of the Lahore High Court as Election Tribunals and could not arbitrarily refuse to appoint certain judges nominated by the Chief Justice, and nor could unilaterally assign which cases were to be marked to which tribunals or assign jurisdiction to the said tribunals.
Salman sought the recusal of Justice Faez in view of the facts and circumstances that constitute, in law, actual and potential bias, inter alia, prior public statements and actions of his spouse, and the personal history between the chief justice and Imran Khan, founding chairman PTI.
He stated that the cornerstone of any judicial system is the principle that justice must be administered without fear or favour, affection or ill-will. This principle is enshrined in the rights of access to justice and fair trial which are guaranteed under Articles 9 and 10A of the Constitution.
He added that it is imperative that a judge must not only be impartial but must also be seen to be impartial. The test for recusal is not limited to actual bias but extends to the perception of bias in the eyes of a reasonable observer.
Raja continued that the existence of personal animosity between a judge or his spouse and a party interested in the case before the said judge is sufficient to create the perception of bias in the eyes of a reasonable observer. In the present case, the apprehension of bias stems from the well-publicized history between Justice Isa (as he then was) and Imran Khan, and the public statements of his spouse arising in relation thereto with which Chief Justice Isa has never expressed disagreement.
He also submitted that the conduct and demeanour of CJP Faez Isa while hearing matters in which Imran Khan or PTI or PTI’s members have an interest has also raised reasonable apprehensions in the minds of fair-minded observers affecting the confidence of a large part of the people of Pakistan in the impartiality of the judicial process.