At least eight Pakistan Tehreek-e-Insaf (PTI) candidates for the National and Punjab assemblies have moved the Supreme Court seeking Chief Justice Qazi Faez Isa's recusal from hearing the Punjab Election Tribunals case. They fear that the top judge may be biased owing to prior actions undertaken by PTI's government against him and his wife, Serina Isa.
The case regarding appointing election tribunals in Punjab has been listed for hearing on August 19, and a five-judge larger bench, headed by Chief Justice Qazi Faez Isa, will hear the case. Other members of the bench include Justice Aminud Din Khan, Justice Jamal Khan Mandokhail, Justice Naeem Akhtar Afghan and Justice Aqeel Abbasi.
Among the PTI candidates who have signed off on the petition include Chaudhry Muhammad Nazeer from PP-11 Rawalpindi, Hassan Adeel from NA-60 Jhelum, Nasir Ali Khan from PP-14 Rawalpindi, Raja Rasheed Hafeez from PP-17 Rawalpindi, Saad Ali Khan from PP-12 Rawalpindi, Seemabia Tahir from NA-57 Rawalpindi, Shehyar Riaz from NA-56 Rawalpindi, Shoukat Iqbal Mirza from NA-61 Jhelum, and Shoukat Mehmood from NA-16 Bahawalnagar.
"It is most respectfully prayed that under the circumstances, and in the interests of justice and propriety, Chief Justice Qazi Faez Isa may kindly recuse himself from hearing the present Appeal and connected matters," stated the application, which was primarily moved by PTI candidate from NA-16 in the Bahawalnagar district Shoukat Mehmood and supported by the above-mentioned leaders.
PTI's Salman Akram Raja, one of the main respondents in the tribunal's case, has already moved an application for adjournment, citing the unavailability of his counsel, Hamid Khan.
It is pertinent to mention here that PTI's objection to the inclusion of Chief Justice Isa on the bench — contending that, per a past decision in an unrelated case, he may allegedly be biased against the party — has already been overruled.
Election tribunals case
In the elections tribunal case, the top court has been asked to decide who is the competent authority to appoint election tribunals in Punjab and hear representations from the aggrieved candidates on matters pertaining to the February 8 general elections.
Amid speculations of a 'judicial package' besides several allegations of rigging in the general elections levelled by the opposition PTI, the case is being viewed with keen interest as it is linked with the survival of PTI-backed returned candidates from Punjab in the provincial and national assemblies.
The top court's five-judge bench last heard the case on July 4. While hearing the Election Commission of Pakistan (ECP) 's appeal, it suspended a decision from the Lahore High Court (LHC) and the Commission's notification for establishing eight election tribunals in Punjab until its final verdict in the case.
The LHC, in its order had declared that the opinion or the nomination of the chief justice of the concerned high court must have pre-eminence in the process of consultation between the chief justice of the high court and the ECP for the purpose of appointment of sitting judges of the high court in Election Tribunals.
Therefore, it was held that the ECP is constitutionally bound to appoint judges nominated by the chief justice of the Lahore High Court for Election Tribunals in Punjab and could not arbitrarily refuse to appoint certain judges nominated by the chief justice, nor could the Commission unilaterally assign which cases were to be marked to which tribunals or assign jurisdiction to the said tribunals.
PTI concerns
"It is significant to note that the matter in issue decided in the LHC Judgement is of particular significance to the PTI," the party members stated in their application, adding that the proper composition and appointment of Election Tribunals is crucial to the outcome of the election petitions filed by PTI candidates before Election Tribunals, and in turn, to PTI's rightful claim to form governments in Punjab and the federation.
"It is, therefore, essential that the process for appointing judges to these tribunals adheres to the constitutional principles of fairness and impartiality. Therefore, the matter of appointment of independent and impartial Election Tribunals to hear their various election petitions (which is the subject matter of the present appeal) is a matter that is of critical importance to the PTI and its candidates including the applicant as well as the other respondents in the appeal," it said.
Recusal of CJP
The applicants sought Chief Justice Qazi Faez Isa's recusal from hearing the appeal given the "existence of facts and circumstances that constitute, in law, actual and potential bias due to, inter alia, prior public statements and actions of his spouse and the personal history between the honourable judge and Imran Khan, the [former] Chairman of PTI."
The application explained that the Presidential Reference filed against Justice Qazi Faez Isa during the PTI tenure was unfortunately perceived as a personal attack by (then) Justice Isa's spouse, Sarina Isa. The application alleged that Mrs Isa then launched 'personal' attacks on Imran Khan.
"During and following the filing of the reference by the President of Pakistan, Mrs Isa launched a series of personal attacks on Mr Imran Khan. These attacks are well-documented in the form of open letters and public statements, which have been reported by mainstream newspapers," the application stated.
"The nature of the attacks on Mr Imran Khan demonstrated a high degree of personal spite and venom against him and his party," the PTI members alleged, adding, "Chief Justice Qazi Faez Isa has never distanced himself from the positions adopted, and attacks made by his spouse, and there is no reason to believe that he has any disagreement on this account."
The application also cited letters and interviews of Mrs. Isa published in print media.
"The instances are sufficient to cause a legitimate apprehension and possibility in the minds of reasonable and fair-minded observers of the judicial process. It is established jurisprudence around the world, particularly in common law jurisdictions, that extra-judicial statements of a judge or persons closely associated with the judge can be the basis of the apprehension and possibility of bias."
The application also cited the top court's 2021 judgment, in which Chief Justice Gulzar Ahmed barred Justice Isa from hearing any matter relating to the then Prime Minister Imran Khan.
"The cornerstone of any judicial system is the principle that justice must be administered without fear or favour, affection or ill-will," the application stated, adding that 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.
"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," it said.
"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," the application argued, adding, "in the present case, the apprehension of bias stems from the well-publicised history between Justice Isa (as he then was) and Mr Imran Khan, and the public statements of his spouse arising in relation thereto with which Chief Justice Isa has never expressed disagreement."
"Given the high stakes involved, the critical interest of Mr. Imran Khan and his party candidates in the current matter, especially concerning election results that affect PTI the presence of the chief justice on the bench can cause sufficient apprehension of bias rendering it proper in the circumstances to merit a recusal in the interests of justice."
"Furthermore, even in matters that are unrelated to PTI or Imran Khan, Chief Justice Qazi Faez Isa's remarks and observations tend to reveal a sense of ill-will towards Imran Khan and his party that raise a clear apprehension of partiality."
It is pertinent to note that the incidents cited by the PTI date to a time when CJP Isa was still a justice in the top court but was not elevated to the position of chief justice.