Justice (R) Faqir M Khokhar - I am a regular reader of Dawn. In one of its issue I read the article of Mr A G Noorani, a lawyer living and practicing in Bombay. I know of him through his incisive and learned articles in our national media and particularly in a very prestigious magazine Criterion. The range of his writings includes the history of partition, interpretation of constitutional provision in Supreme Court India, Jinnah’s view about the state of Pakistan and many legal topics.

In his last article, which I read in Dawn, he has dealt with the dilemma which a judge occasionally faces when a litigant alleges bias against him requesting the learned judge to recuse himself from that case. Mr A G Noorani has adequately dealt with the subject with reference to judicial precedents relying on the two well-known maxims of natural justice requiring no one to be a judge in his own cause and that justice should not only be done but seen to be done.

I intend to approach this subject from another angle of the “purity of justice”.

The whole object of the framework of administration of justice is to assure that “The purity and impartiality in the temple of justice is surely and absolutely maintained”.

What vitiates this purity is the judicial bias. A judge has to remember that while sitting on the Bench “he becomes a trustee of sublime cause of the highest value in society, the cause of justice between man and man; he is to get rid of subjectivity, emotion and sentiments while occupying the hallowed seat of justice.”

The viciousness of bias is of such repugnancy that even if a bench or tribunal consists of three or more judges, and the bias of only one is shown, the entire judgement is vitiated because “in a group deliberation each member is bound to influence the other.” So to say the non-biased members of the bench are treated equally as if they were also bias.

That is the standard of purity of justice. The readers can question why is bias raised to such a formidable level? Is it through some statutory or constitutional dispensation or some well-known maxim of law?

The principle of bias is a part of realm of natural justice which has not been defined in any formula or statute, although the principles have occupied a considerable part of the jurisprudence. Its limits cannot be determined because natural justice is not a static concept. It has become a part of the judicial vocabulary in the administration of justice. It is no longer extra-legislative. It is accepted and recognized as a guiding factor in administrative law and forms even the constitutional basis for judicial scrutiny of judicial actions (See Art. 10A of our Constitution).

I read a definition in which natural justice was inter alia defined as “representing the ethics of judicial conscience”. Bias is a branch of this jurisprudence. I recall a case of Indian Federal Court before it was converted into Supreme Court of India where for the bias of a judge he was removed on the reference for “judicial misbehavior”. This was the case of a judge of the High Court and if I correctly recall it, it happened in 1948.

The case was widely reported in newspapers and I was surprised to read because the principle of natural justice was in the inception in Pakistan, that he was removed for judicial misbehavior inter alia on the ground that the judge entertained, during the courts’ vacation, an application filed by one of the parties for the transfer of the Civil Court to another Judge and in the meantime the learned judge of the High Court granted a stay order. It was noted that “During the vacation unless they require immediate attention, no petition could be entertained.” Incidently there is a likewise provision in our Supreme Court Rules, 1980 Order II Rules 5 and 6 which reframed reads “During the vacation only those matters, which may require to be immediately or promptly dealt with, the judge nominated during the vacation would hear.”

No doubt there were some other allegations also against the judge as were reported widely in the newspapers but I recollect this one as it appeared to me something extra-ordinary. When the announcement of removal of the learned judge was made, an editorial in the newspaper of that time concluded, “The above case is illustrative of the scope of judicial bias vis-à-vis judicial purity.”

That is the concept of principle of natural justice which is now pontified as due process. If this is the requirement of administration of justice, then why this dilemma that the judge faces when there is an issue of bias raised before him? It is because that a judge being human and not a machine suffers from subjectivity and it is natural for him not to agree with the applicant for the reasons advanced by him for the alleged bias. As mentioned earlier the principle of natural justice is not static and is organically growing. A judge in such a situation is provided with a yardstick to determine whether he should opt recusing himself or not. It has been insisted by innumerable authorities which in a way has now become a judge made law that the accused judge should not determine the effect of the alleged bias on the mind of the judge himself but according to the mind of a reasonable person who may have reasonable apprehension that he may not get pure justice from the learned judge.

In my long tenure of a Judge in the High Court and in the Supreme Court I found many of my colleagues recusing themselves as and when some litigant pointed out the basis for bias. They have all been known as honorable judges.

Finally I am reminded of a case in reverse. Justice Maulvi Mushtaq Hussain, who was a very well-known judge, and was entrusted the trial of Zulfiqar Ali Bhutto for allegation of murder of father of Ahmed Raza Kasuri. Zulfiqar Ali Bhutto submitted an application of bias on the ground that Justice Maulvi Mushtaq Hussain was a candidate for being appointed as the Chief Justice of West Pakistan High Court but he was not so appointed and Justice Sardar Muhammad Iqbal who was senior in age was given this office. Accordingly Justice Maulvi Mushtaq Hussain was requested to recuse himself on account of this bias. No doubt during the proceedings some unpleasant incidents also happened between the learned judge and Mr Zulfiqar Ali Bhutto. Yet Justice Maulvi Mushtaq Hussain held that I am confident that I can give justice to the accused. This was his subjective understanding. Unfortunately when the matter came before the Supreme Court and the issue of bias was raised again, the learned judges of the Supreme Court held that they could not interfere in the discretion exercised by Justice Maulvi Mushtaq Hussain, a Judge of the High Court and that any unpleasant event that took place during the proceedings was of the making of the accused himself. Zulfiqar Ali Bhutto was hanged. The judgement has been recorded in history as “judicial murder”.

-The writer was the judge of the Supreme Court who voluntarily gave up his office when the issue of PCO judges was raised after the restoration of Chief Justice Iftikhar Muhammad Chaudhry. He is known to be most well-versed Judge of the rulings and principles of justice and was respected for his knowledge by all who sat with him in the courts.