“NOT ONLY MUST JUSTICE BE DONE; IT MUST ALSO BE SEEN TO BE DONE”
How can we ensure that justice is not only done, but seen to be done?
I think judges should be as self-aware about what their biases are, and proactively taking steps to ensure that biases don’t affect their decisions. A judge should decline resolutely to act in a case involving his own interest or if a judge’s conduct or behavior apprehends a suspicion that the judge is not impartial.
I’ll say that recusal by a judge is not a sin and does not in any way harm the independence of the judiciary or hurt the integrity of a judge. In fact, the judges who recuse themselves are duly respected and are considered to be independent and interested in justice and not the case. The judges are not there for themselves but are there to provide justice to a common man and if there is a reasonable bias established a judge must recuse and the case should be passed on to another judge.
This is a hot topic nowadays because media is talking about a bench headed by honourable Chief Justice Jawwad S Khawaja and the counsels of biggest real estate of Pakistan state that there seems to be apparent bias as Chief Justice Jawwad Khawaja cancelled general adjournments granted to them by ex Chief Justice of Pakistan Nasir-ul-Mulk and ordered to resume the hearing during general adjournment. Aitzaz Ahsan termed it as violation of Constitution (Article 10-A) that every party has right to free & free trials. During the hearing Justice Jawwad Khawaja also made a statement “Instead of recusing myself from the bench, I would resign and go straight to my home.”
Many honorable judges have recused in the past. We have so many examples where judges recused when some reasonable bias was shown. In a case, Justice Nasirul Mulk, when the issue of bias was raised before him, stated in Court that although the biases are remote, yet I recuse myself. He was respected not only in the eyes of the public but also amongst lawyers. After recusal he did not retire nor did he go home; instead he rose to become the Chief Justice of the Supreme Court, earning respect from the 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.
Recusal is an important matter and not something that should be taken lightly. A judge may not sit on a case where he has a financial interest vested in that particular case, whether in one of the parties to the case or in the “subject matter in controversy”. A judge must also recuse himself if the judge, his former law partner, or his close relative has been or will likely be a material witness in the case. A judge’s actually having served as a lawyer on the case is a grounds for disqualification, not simply recusal. Most contested recusals, however, fall under the two more general “catch-all” provisions. A judge must recuse himself in any proceeding in which his impartiality might reasonably be questioned, where he has a personal bias or prejudice against the subject matter or the parties, or where he has personal knowledge of any disputed facts.
Recusal is the self-limiting practice of a judge to remove themselves from a case in which they have a conflict of interest, because it might be perceived as a reason for the public to question the court’s impartiality.
In most countries, judges are given the discretion to exercise their right of recusal, and generally their decisions are not challenged by their fellow judges. But in Pakistan, the Code of Conduct for the Supreme Court judges passed in 2009 requires a judge to “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 friends.” Article IV states that the purpose of this prohibition is “to ensure that justice is not only done, but is also seen to be done”.
According to this code, recusal is not limited to cases when a judge would actually let the conflict of interest cloud their judicial opinion. Even an honest judge, who would act against his own interest to uphold principles of justice, is prohibited from hearing cases that would cause the public to question the impartiality of the court. That is because the court’s ability to exercise power is directly related to the public’s trust in their credibility.
Justice Aslam Riaz wrote a dissenting opinion in Federation of Pakistan v Muhammad Akram Sheikh which stressed that the public’s respect for the judge rested on “ensuring that justice is not only done but is seen to be done”.
