An Excuse to Recuse
It is a well-known fact that the judiciary needs to be independent of the other arms of the State in order for judges to act as effective arbiters of justice. However, in most democratic nations, the independent judiciary is not selected or appointed by the ordinary people; therefore, a balance needs to be struck between judicial independence and judicial accountability to ensure that the judges presiding over the country’s courts represent the will of the people they judge. Once a judge has been appointed, there are few checks on his or her powers that can be exercised by an ordinary citizen or a lawyer appearing in court before the judge. Although the right to a fair trial and due process is enshrined in the Constitution of Pakistan (Article 10A) and guaranteed for all the country’s citizens, nothing can ensure that a judge, being a human being, will not violate this fundamental right in any given case due to his or her personal bias. One of the primary ways to prevent a violation of due process caused by bias is judicial recusal.
Owing in part to the aforesaid realities, judicial recusal is favourably viewed in most democratic countries, its foundation being three laudable principles accepted as legal maxims: 1) no one can be a judge in his own cause; 2) justice should not only be done but manifestly and undoubtedly seen to be done; and 3) bias vitiates the proceedings including the conclusion.
Article 209 of the Constitution of Pakistan provides that at any time that the Supreme Judicial Council (the “Council”) is inquiring into the conduct of a judge who is a Council member, “… the judge of the Supreme Court who is next in seniority below the [said Judge]… shall act as a member of the Council in his place.” The Code of Conduct for Supreme Court and High Court judges of Pakistan affirms, “[a] judge must decline resolutely to act in a case involving his own interest”, or the interest of his close friends or relatives in order to “ensure that justice is not only done, but is also seen to be done” (Article IV). The Constitution indicates that even a mere inquiry into the conduct of a judge (whether baseless and unproven) causes the judge to mandatorily be recused from the Council. A plain reading of the Code of Conduct suggests that the apprehension of bias could be enough cause for a judge to recuse him or herself so that justice is “seen to be done.”
It may be useful to examine the legislation concerning judicial recusal in English law, on which the laws of Pakistan are largely based on. The Guide to Judicial Conduct for England & Wales (2013) requires circumstances “which may give rise to a suggestion of bias, or appearance of bias” to be disclosed by a judge to the parties before the hearing (Section 3.12). Even if the parties consent to the biased judge adjudicating on a dispute, “if the judge, on balance, considers that recusal is the proper course, the judge should so act.” As early as 1866, the Queen’s bench in England indicated that judicial disqualification should be ordered whenever there was a real likelihood that the judge harboured a bias in favour of or adverse to one of the parties (The Queen v. Rand (1866)). In a more recent case, Lord Justice Ardenwrote that “the established test for apparent bias was, if a fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility that the judge was biased, [then] the judge had to recuse himself” (Mengiste v. Endowment Fund (2013)).
Indian law has developed in parallel with Pakistani law and also finds its source in English law. Indian law recognizes the concept of judicial recusal as articulated by Venkatachaliah, J. in Ranjit Thakur v. Union of India (1987): “As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly ‘Am I biased?’ but to look at the mind of the party before him” (sic). This approach has not been unilaterally adopted in all cases by the Indian judiciary but provides a useful guide for a judge who has been requested to recuse him or herself in a case.
Interestingly, in the United States of America a total of 39 States hold elections for State Supreme Court, appellate and major trial court judges. In spite of this, American law also embraces the principle of judicial recusal providing in 28 U.S. Code § 455(a) that any judge of the United States “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned”, and in § 455(a) that“[h]eshall also disqualify himself… [w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” No American judge is permitted to accept a waiver from a party to the proceedings of any ground for disqualification. In several State jurisdictions in the country a judge may decide only the legal sufficiency and timeliness of a motion to disqualify or recuse, in order to prevent a party from being compelled to litigate a matter before a judge with a “bent of mind” (Johnson v. District Court (Colo. 1984)). According to one scholar, a close reading of the American Bar Association’s Model Code of Judicial Conduct suggests that a different judge should be deciding motions for recusal to avoid the appearance of partiality and prevent erosion of public confidence in the integrity of a judicial system, which relies on the presence of a neutral judge to preside over all court proceedings (Leslie W. Abramson, Deciding Recusal Motions: Who Judges the Judges?, 28 Val. U. L. Rev. 543 (1994)).
In light of the foregoing, an application for recusal should not be taken as a personal affront to the dignity of a judge but rather be seen as an excuse to demonstrate the judge’s impartiality and fairness. An application for recusal that results in contempt proceedings being initiated against the counsel of the applicant may, in fact, be strong proof of the judge’s bias. There is a fine line between judicial activism and judicial despotism and if the judiciary, which is not necessarily representative of the citizens of the country, is to effectively dispense justice to those citizens, it would do well to restrain itself and impartially consider any allegation of bias.
Some research is taken from Mr. S. M. Zafar’s article, ‘A Noble Lie’ published on 8th August 2015, with his kind permission
The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.
Very nicely written and quite relevant given the current context in Pakistan !