Mar 3, 2009

A controversial verdict

By Qazi Faez Isa
ASIF Ali Zardari was disqualified from holding public office, sentenced to undergo imprisonment for five years, fined $8.6m and had his property confiscated by the Lahore High Court for receiving kickbacks from SGS in offshore bank accounts.
Zardari filed an appeal before the Supreme Court and his conviction was set aside and the case was remitted to the court for a fresh trial as it was held that the trial was not fair on account of biased judges.
The seven-member Bench of the Supreme Court, that included Justice Iftikhar Chaudhry, set Zardari free, holding, that, 'the consideration of bias is a branch of the Principles of Natural Justice. Whenever there is any allegation of personal bias, the question which should be satisfied is, ‘is there in the mind of the litigant a reasonable apprehension that he would not get a fair trial?' (PLD 2001 Supreme Court 568).
The Supreme Court cited Lord Denning, 'The court looks at the impression which would be given to other people. Even if he was impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.'
Lord Hewett’s famous words also affirmed, that, 'it is not merely of some importance, but of fundamental importance, that justice should both be done and be manifestly seen to be done'.
Article 4 of the Pakistan Judges Code of Conduct stipulates as much: 'Ensure that justice is not only done but is also seen to be done.'
Moosa K. Laghari, Sheikh Hakim Ali and Sakhi Hussain Bukhari heard the disqualification appeals of the Sharif brothers. These judges had taken the oath mandated by Gen Musharraf and had been elevated to the Supreme Court without having served as senior judges of high courts, contrary both to practice and precedent. Those who had proposed and seconded the brothers filed applications seeking the hearing of the appeals before judges who had not taken Musharraf’s oath. The Sharifs like many other compatriots publicly expressed no confidence in them and wanted to be 'judged, not amputated by them' (T.S. Eliot).
In view of the Sharifs’ public support of the lawyers’ movement and the fact that they had contested elections on the basis of the restoration of the pre-Nov 3, 2007 judiciary, there was an impression that those who had taken an oath upholding Gen Musharraf’s actions (that was contrary to the constitutional oath) may be biased. Abdul Hameed Dogar did not constitute a Bench comprised of judges who had not taken Musharraf’s oath and ensured that there was not a single such judge on the Bench. Actual bias or prejudice is immaterial; a possibility or an impression is sufficient to vitiate any decision.
Lord Mansfield as far back as 1766 in Hesketh v Braddock pronounced, 'There is no principle of law more settled than this, that any degree, even the smallest degree of interest, is decisive. The law has so watchful an eye to the pure and unbiased administration of justice. The minuteness of the interest will not relax the objection. For the degrees of influence cannot be measured: no line can be drawn, but that of a total exclusion of all degrees whatsoever.'
There was yet another element in the case; both the Sharif brothers refused to appear before the Bench. In Zardari’s case the Supreme Court had identified the failure to 'hear the other side' as one form of bias.
The question arises whether the Supreme Court can set aside the judgment delivered by the Bench headed by Justice Moosa Laghari on the ground of bias. There is a precedent. Augusto Pinochet, the former head of state of Chile, applied for the setting aside of the decision of the House of Lords because of the 'appearance of possible bias' in one of the five judges.
Pinochet, however, did not allege that Lord Hoffman was in fact biased. An altogether different Bench of five law lords heard the matter and a unanimous decision followed. The House of Lords held that as the ultimate court of appeal it had inherent jurisdiction to correct any injustice caused by an earlier order.
The British apex court further held that even though no actual bias had been proved nor had been alleged, there was a possibility of bias; therefore, it set aside its earlier judgment.
Each of the five law lords had something to say on the matter of bias of their own colleague. Lord Nolan held that 'where the impartiality of a judge is in question the appearance of the matter is just as important as the reality'. Lord Browne-Wilkinson reiterated that an application of the fundamental principle that a man may not be a judge in his own cause is 'where in some way a judge’s conduct or behaviour may give rise to suspicion that he is not impartial'.
Lord Goff stated that a judge stood disqualified if he could 'be said to have an interest in the outcome of the litigation, and so be disqualified from sitting as a judge in the proceedings'. Lord Hutton endorsed without reservation that a judge must disqualify himself when an appearance 'gives rise to a reasonable apprehension of prejudice, partiality or prejudgment'.
Lord Hope concluded by stating that 'one of the cornerstones of our legal system is the impartiality of the tribunals by which justice is administered', and indicated the necessity of preserving 'the administration of justice from anything which can even by remote imagination infer a bias or interest in the judge'.
'It is no answer for the judge to say that he is in fact impartial and that he will abide by his judicial oath,' he said.
The verdict has laid the leadership of one of the most popular parties into a political grave as the country descends into an infamy of injustice, in the midst of a tempest of passion, of disgust and of despair.

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