Beruflich Dokumente
Kultur Dokumente
ORDER
"GOVERNMENT OF PAKISTAN
MINISTRY OF LAW, JUSTICE & PARLIAMENTARY AFFAIRS
ISLAMABAD
PRESS RELEASE
(ii) The rule that the Review Petition may be heard by the
same Judges has exceptions. One of these is based upon the
principle, that 'no one should be a Judge in his own cause'.
"But the only way in which the facts could affect their
impartiality would be that they might have a tendency to
favour those for whom they were trustees; and that is an
objection not in the nature of interest, but of a challenge to
the favour. Wherever there is a real likelihood that the
Judge would, from kindred or any other case, have a bias in
favour of one of the parties, it would be very wrong in him
to act: and we are not to be understood to say that where
there is a real bias of this sort, this Court would not
interfere."
"No one can suppose that Lord Cottenham could be, in the
remotest degree, influenced by the interest that he had in
this concern; but it is of the last importance that the maxim
that no man is to be a Judge in his own cause should be held
sacred. And that is not to be confined to a cause in which he
is a party, but applies to a cause in which he has an interest.
Since I have had the honour to be Chief Justice of the Court
of Queen's Bench, we have again and again set aside
proceedings in inferior tribunals because an individual, who
had an interest in a cause, took part in the decision. And it
will have a most salutary influence on these tribunals when
it is known that this High Court of last resort, in a case in
which the Lord Chancellor of England had an interest,
considered that his decree was on that account a decree not
according to law, and was set aside. This will be a lesson to
all inferior tribunals to take care not only that in their
decrees they are not influenced by their personal interest
but to avoid the appearance of labouring under such an
influence.".
"This rule has been stated many times but the following
dicta may be quoted:
"The law in laying down this strict rule, has regard, not so
much perhaps to the motives which might be supposed to
bias the Judge, as to the susceptibilities of the litigant
parties. One important object, at all events, is to clear away
everything which might engender suspicion and distrust of
the tribunal, and so to promote the feeling of confidence in
the administration of justice which is so essential to social
order and security."
25. These are but only a few of the cases illustrative of the
point and more can be found and cited. Where the whole
legal order is being challenged and the Judges functioning
within the framework of the legal order under challenge are
called upon to render judgment, the question of there being
a personal bias, of being a Judge in his own cause, of having
a legal or pecuniary interest in the matter does not arise.
The same happened in the appeal of Haji Muhammad
Saifullah and other connected matters. The vires of the legal
Order after 29-5-1988 was questioned and also the legality
of appointments made after 29-5-1988, in the absence of
the Acting Prime Minister was pointedly raised in the
proceedings and considered by the Court and finally dealt
with in a decision inter partes. Now one of the parties to
that decision, the Federation, while seeking review of
another matter arising thereunder by reference to that
decision, wants some of the Judges who decided that case,
to be declared as Judges in their own cause having a
pecuniary interest. This does not happen. Those Judges do
not become Judges in their own cause simply because the
respondent has become the petitioner.
"A Judge must refuse to deal with any case in which he has a
connection with one party or its lawyer more than the other,
or even with both parties and their lawyers.”
"To ensure that justice is not only done, but is also seen to
be done, a Judge must avoid all possibility of his opinion in
any case being swayed by any consideration of personal
advantage, either direct or indirect."
(Sd.)
Nasim Hasan Shah, J
(Sd.)
Shafiur Rahman, J.
(Sd.)
Javid lqbal, J.
(Sd.)
Ghulam Mujaddid, J.
(Sd.)
Saad Saood Jan, J.
(Sd.)
Usman Ali Shah, J.
(Sd.)
Ali Hussain Qazilbash, J.
(Sd.)
Naimuddin, J.
"No one can suppose that Lord Cottenhem could be, in the
remotest degree, influenced by the interest that he had in
his concern but it is of the last importance that the maxim
that no man is to be- a- Judge in his own cause should by
held sacred.”
" ....The effect of our judgment in that case was that though
pecuniary interest in the subject-matter of the dispute,
however small, disqualifies the Justices, yet the mere
possibility of bias did not ipso facto, avoid Justices' decision,
and we thought that though there was possibility of bias in
that case, yet it was not real."
"The law in laying down this strict rule, has regard, not so
much perhaps to the motives which might be supposed to
bias the Judge, as to the susceptibilities of the litigant
parties. One important object at all events, is to clear away
everything which might engender suspicion and distrust of
the tribunal, and so to promote the feeling of confidence in
the administration of justice which is so essential to social
order and security.”
22. The plea of the counsel for the Federal Government was
that while hearing the appeals against the judgment of
Lahore High Court in the petition filed by Haji Saif Ullah
wherein he had challenged the validity and legality of
actions taken and laws framed or appointments made by the
President between the period 29-5-1988 to 2-12-1988. the
learned members of the Bench hearing the appeal were
concerned merely with considering the Constitutional
question as to whether or not the Prime Minister was
necessary for the formation of a "care-taker Cabinet" under
Article 48(5)(b) of the Constitution. At that stage the
proposition was merely a legal one and no pecuniary
interest of any kind was involved. But later, by the time
Federal Government filed C.M.P. Nos.149-R/89 and
196-R/89, the position had materially altered. The
Government brought out a Press Release on 10th of March,
1989, requesting inter alia that "all such appointees ma)
suspend performance of their official duties till their
appointments are regulated or reaffirmed by the President
on the advice of the Prime Minister" and the Honourable
Chief Justice of Pakistan actually risked the three learned
Judges of this Court who were appointed (luring the relevant
period to suspend work and they actually discontinued
functioning, the position altered materially. According to the
Federal Government, from that stage onward those learned
Judges, whose career would be affected, one way or the
other, by any decision taken with respect to the
interpretation of the Full Court Judgment dated 5-10-1988,
would obviously have a pecuniary interest in the outcome of
the proceedings.
24-A. As for the argument that this principle does not apply
to the superior Courts, at the apex, I would respectfully
refer to the following portion of the extract. reproduced
from Harvard Law Review in paragraph No.15, above:-
"I would not like to hear this case for personal reasons"
or simply
"I have consulted the Judges who have signed the main
judgment and they have stated that they will not feel
embarrassed to hear the case."
Be that Fps it may the above question can Arise, if at all, only
if the view expressed in the order. dated 18-3-1989 of the
Bench or 4 Judges to the effect that the findings on all
matters in controversy were recorded in the Dissolution
Cases to remove all doubts and ambiguity with regard to the
distribution of functions and powers under the Constitution
for guidance .in the future and things done during the period
from 29-5-1988 to 2-12-1988, even though some of them
were not in accordance with the Constitution, allowed to
prevail, is reversed. The said view was grounded on the facts
that despite the finding that the Assemblies were unlawfully
dissolved they were not restored. Instead the orders for
holding new elections to replace them were upheld. Again
despite the fact that no Prime Minister was appointed to
head the care-taker Government and although it was found
that it was necessary that he must head the Government at
all times under the Constitution, the Ordinances
promulgated on its advice, inter alia, the Delimitation of the
Constituencies (Amendment) Ordinance, 1988, were not
only upheld but found to have paved the way for the
General Elections held on 16th November and 19th
November, 1988. But the Federation of Pakistan is now
questioning the view at least in so far as acts done, actions
taken, orders passed and appointments made by the
President during the said period is concerned and in this
connection the following passage occurring in the judgment
of my learned brother S. Rehman, J. is mainly being relied
upon:
Apart from the fact that this passage occurs in the judgment
of my learned brother to which only one of my learned
brothers concurred, while nothing in support of these
observations has been said in the main judgment delivered
by the remaining 10 Judges; even my learned brother S.
Rehman, J. in his aforesaid judgment has himself clarified
the purport of his above observations by observing--
(2) That the High Court in its judgment had inter alia held
that the office of the Prime Minister is necessary at all times
for running the affairs of the country remained without a
Prime Minister from 29-5-1988 to 2-12-1988.
And it was said by lord Cave L.C. in the modern case Frome
United Breweries Co. v. Bath Justices (1926) A.C. 586, 590:
The policy of law that no writ will issue to a High Court and
Supreme Court is based on sound principles. If one Judge of
a High Court were to issue a writ to another Judge under
Article 199, the Judge to whom the writ is issued, may in
exercise of the same jurisdiction nullify the writ. This is the
logical consequence of the fact that High Courts and their
individual groups of Judges are invested with coordinate
jurisdiction. "
Another reason why writs should not issue from one High
Court to another High Court and from one Judge to another
Judge of the same High Court is that such a course will
destroy the traditional high degree of comity among the
Judges of superior Courts which is essential for the smooth
and harmonious working of the superior Courts.
Observations to this effect will be found in the judgment
delivered by the Court in Mian Jamal Shah v. The Member,
Election Commission and others. This is one of the cases on
which Mr. Mumtaz Hussain relied in the course of his
address. The respect and amity which the Judges should
extend to each other will certainly be diminished if they
were to issue writs to each other.
Lastly, as I read the provisions of Article 199, they spell out
that a writ will not issue from one Judge of a High Court to
another Judge of the same Court. Article 199(1) confers
jurisdiction on High Courts to issue writs to persons
performing, within their territorial jurisdiction, functions in
connection with the affairs of the Federation, a Province or a
local authority. A High Court cannot therefore issue a writ to
a person performing functions in another province. This
restriction applies equally in case of High Courts as the
Judges who constitute these Courts perform their functions
outside the territorial jurisdiction of each other. The
exclusion of High Court from the definition of 'person' is,
therefore, not intended to debar a High Court from issuing
writs to other High Courts. This object is fully served by the
primary condition laid down in Article 199(1). What then is
the purpose of clause (5) of Article 199. Obviously, not to
debar a High Court from issuing a writ to itself. It is too
absurd -to contemplate that a writ could ever issue from the
'High Court of Lahore' to the 'High Court of Lahore'. A more
rational view is that clause (5) is intended to debar Judges of
the High Courts from issuing writs to each other. There is a
weighty reason in support of this view. If this bar is not there
then the judgments delivered by individual groups of Judges
of High Courts in different jurisdictions may in the final
event, be challenged, by litigants, under Article 199 as
without lawful authority on variety of grounds such as error
apparent on the face of the judgment, order or decree, bias,
mala fides etc. In this connection one should bear in mind
large number of decisions given by High Courts in the past
interfering with the orders passed by the Tribunals of
exclusive jurisdiction such as the orders passed by the
Rehabilitation Authorities, Custodian of Evacuee Property,
Settlement Authorities, Revenue Board etc. to which finality
was attached by Statute. These precedents will provide
ample girth to the jurisdiction of each Judge of the High
Courts to quash, under Article 199, judgments, decrees and
orders passed by other Judges of his Court. I do not see how
such a result can be avoided if we exclude Judges from the
term High Court and Supreme Court in clause (5) of Article
199.