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Petitioner: FEDERATION OF PAKISTAN Haji MUHAMMAD SAIFULLAH VS Respondent: MUHAMMAD AKRAM SHAIKH FEDERATION OF PAKISTAN
Court Name: Supreme Court of Pakistan Judge(s):Naimuddin, Ghulam Mujaddid Mirza, Nasim Hasan Shah, Ali Hussain
Qazilbash, Muhammad Afzal Zullah, Aslam Riaz Hussain, Dr. Javed Iqbal, Muhammad Haleem, Shafi-ur-Rehman, Saad Saood Jan, Abdul Qadir Sheikh, Syed Usman Ali Shah Title:FEDERATION OF PAKISTAN Haji MUHAMMAD SAIFULLAH vs MUHAMMAD AKRAM SHAIKH FEDERATION OF PAKISTAN Case No.:Civil Miscellaneous Petition No,196-R of 1989 in Civil Review Petitions Nos.30-R and 33-R of 1989 Date of Judgment:1989-08-06 Reported As: PLD 1989 Supreme Court 689 Result: Civil Miscellaneous Petition. dismissed. Judgment ORDER ' SHAFIUR RAHMAN, J.--The Federation of Pakistan has moved a Petition (C.M.P. No,196-R/1989) on 23-5-1989 expressed to be under Order XXXIII Rule 6 of the Supreme Court Rules, and all other enabling provisions in this behalf. The prayer made is that "three Honourable Judges who had been affected by the judgment, dated 10-3-1989 of this Hon'ble Court and by the judgment under review, one way or the other; may not participate in the adjudication of the matter." 2. This petition has a background. It requires mention. Immediately on the release of the detailed judgment on 9-3-1989 in Civil Appeals No, 314 to 317/88 and Civil Petitions Nos. 392-R/88 and 393- R/88, the Federal Government issued a Press Release published through the media and also sent to the various offices. It reads as hereunder: "GOVERNMENT OF PAKISTAN MINISTRY OF LAW, JUSTICE & PARLIAMENTARY AFFAIRS ISLAMABAD PRESS RELEASE March 10, 1989. ' The Supreme Court of Pakistan on 5-10-1988 by a Short Order upheld the judgment, dated 27-9- 1988 of the Full Bench of the Lahore High Court. The Lahore High Court inter alia had held that the appointment of the Prime. Minister after the dissolution of the National Assembly by General Zia-ul- Haq on 29th May, 1988 was necessary under the Constitution to head the caretaker Government. In
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this regard the Supreme Court while giving the detailed reasons in support of their Short Order, dated 5-10-1988 has inter alia held:- "The reference to the provisions of the Constitution made above show that the Office of the Prime Minister is necessary at all times for running the affairs of the country and that he should have been appointed to head a care-taker Cabinet." ' The Supreme Court has further observed:- "In this background the Constitution does not visualise a care-taker Cabinet without a Prime Minister. The absence of Prime Minister from a care-taker Cabinet alters for the period under discussion the very character of the Constitution from a Parliamentary democracy to a Presidential system of Government. The Court can neither countenance nor condone all this at this stage and in these proceedings. Such violations and breaches concern the very essential features of the Constitution. What are the legal consequences on individual acts done, or actions already taken and suffered, we are leaving it to be decided in individual cases, more appropriately brought before us. ' Finally, the breach concerning the alteration in the Oath of Ministers, the learned Attorney-General had no explanation for it. We do not find any mention of it even in the record. What has been accomplished by an unwritten executive fiat amounts to a material amendment of the Constitutional Provision which could not be accomplished without recourse to Provisions of Part XI of the Constitution. ' The Judgment is given by 11 Judges of the Supreme Court and all of them have unanimously agreed with High Court that the care-taker Government appointed by the President from 29-5- 1988 to 2-12-1988 was in violation of the Constitutional provisions. ' Consequently the actions taken, orders passed or appointments made after 29th May, 1988 upto 2nd December, 1988 by the President which were required to be taken, passed or made on the advice of the Prim; Minister were illegal. Such actions, orders and appointments have to be regularised in accordance with the provisions of the Constitution and therefore all Government Offices, Departments, the Registrars of the High Courts and Supreme Court are requested immediately to contact the Ministry of Law and Justice with regard to such actions, orders and appointments taken, passed or made by or in the name of the President from 29th May to 2nd December, 1988 so that these are regularised by taking appropriate steps in accordance with the Constitution in the light of the judgment of the Supreme Court. It is further advised that all such appointees may suspend the performance of their official duties till their appointments are regularised or reaffirmed by the President on the advice of the Prime Minister. Certain legislative measures may also be required to be taken after carefully considering the implications of the judgment of the Supreme Court." 3. An application (C.M.P. No,68-R of 1989) was then filed by Mr. Muhammad Akram Sheikh, Advocate on 13-3-1989 seeking the following reliefs: - (i) to clarify the full and correct implications of our own detailed judgment in Civil Appeals Nos. 314, 315, 316, 317/88 and C.Ps. Nos. 392-R and 393-R/1988; (ii) to proceed in contempt against those who are deliberately misinterpreting it to deprive political advantage out of it; (iii) to end the legal chaos and Constitutional crises into which the country has been plunged. It was disposed of by a Bench of four Judges on 18-3-1989 directing that the specified disputed portion "should stand deleted and be taken not to have been issued at all". 4. A Petition (Civil Review Petition No,33-R /1989) was thereupon filed by the Federation seeking review of the Judgment, dated 18-3-1989. Before that review could be taken up the Federation filed an application (C.M.P. No,149-R of 1989) praying as hereunder: -
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"On behalf of the Federation of Pakistan, it is respectfully submitted that consistent with high traditions of our judiciary and the principle of natural justice i.e, that no person shall be a Judge in his own cause, it is submitted that the three Judges of this Honourable Court who had been appointed by the President without the advice of the Prime Minister and had been affected by the judgment of this Hon'ble Court under review one way or the other, are requested that they may not sit on the Bench on 27th May, or on any date thereafter when the matter is heard as that will set a very bad precedent as Judges personally interested in the matter do not sit as Judges to decide a case." 5. It was disposed of by my Lord the Chief Justice in Chamber on 16-5-1989 with the following Order:- "I have heard-the learned Attorney-General but .I am afraid it will not be possible for me to disturb the constitution of the Full Court when it is seized of the case, and the case has already been partly argued and is now fixed for further hearing. It is also of significance to mention that in the case under review, the jurisdictional defect in the constitution of the Bench which decided the case is also involved, as a result of the ground taken in the review petition that the case should have been heard by the Full Court which heard and decided Saifullah's case. 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." 6. It was thereafter that this application (C.M.P No,196-R/1989) was moved explaining why the earlier application was moved, and praying as hereunder:- (i) This application was filed keeping in view the high traditions and principles of natural justice' universally accepted that no one should act as Judge in his own. Cause. (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'. (iii) the clarification, if permissible, should be made by the remaining 9 Judges who were party to the judgment of 10-3-1989 and also by any other Judge that might be available." 7. When this petition/application came up for hearing before the Full Court the learned Attorney- General explained that when a general challenge was thrown to the dissolution of the National Assembly and the Provincial Assemblies, to the legitimacy of the governmental set up that ensued and to the validity of its acts _and deeds, that sort of bias was not at all involved as after the decision, some of those very issues were once again before the Court with the reasonings and the findings of the' Court having become known through the detailed judgment. The learned Attorney- General drew our attention to the case of Miss Asma Jilani (PLD 1972 SC 139) wherein the legitimacy of the usurper's rule was in issue, the Judges appointed by such usurper participated in the decision but that would not have been possible in any other/subsequent case if the principle of condonation of certain acts of the usurper including the appointment of the Judges had not been condoned as was done in that very judgment. 8. In order to further clarify the point of law invoked by him the learned Attorney-General has referred 'to decisions of this Court in 'Anwar and another v. The Crown 1955 Federal Court 185) emphasizing every word of the observation made in that case and reproduced hereunder:- "There is a species of bias which vitiates judicial proceedings irrespective of the correctness or otherwise of the result, but that is not because bias, whatever form it may assume, avoids the result of judicial proceedings, but because the Judge with that kind of bias is, on grounds of public policy, disqualified to be a Judge. Thus no Judge can be a Judge in his own cause, or in a case in which he is personally interested, not because his decision must invariably be in his own favour but on the principle that justice must not only be done but seen to be done, and however right the Judge deciding a cause in his own favour may be, neither the public nor the aggrieved party will be satisfied with the adjudication, and its result will be vacated by the Court of Appeal at the instance
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of the dissatisfied party. Instances of such bias are recognised in our law in section 556 of the Code of Criminal Procedure, and will also be found in Dimes v. The Grand Junction Canal (No,1) and others (1852) H.L.C. 759-794 and Rex v. Susex. Justices (1924) I K B 256." 9. The learned Attorney-General also relied on the decision in Fazle-Haq v. The State (PLD 1960 S' C 295), wherein suo motu proceedings for a writ of mandamus were initiated and the Supreme Court held "the entire proceeding in this case is misconceived and void and there has been violation of two important juridical principles (1) that the extraordinary jurisdiction relating to a writ can only be exercised by the High Court when moved by a party whose legal rights have been denied; and if in this case the High Court as a whole considered itself aggrieved by the objection of the Accountant-General in taking the action, it has violated (2) the- principle that nobody should sit as a Judge of his own cause". 10. The learned Attorney-General has also referred to the decision given in Mirza Akbar Ali v. Mirza Iftikhar Ali and others (PLD 1956 Federal Court 50) in order to distinguish that particular bias which paralyses the mind of a Judge in rightly adjudicating the cause and from every other bias. The observation of the Court in that case was as hereunder:- "Friendship is too vague and general a term to be judicially recognised as a factor disqualifying a Judge to hear a cause to which one of the parties is his friend. Such relationship, in the case of a Court like the Federal Court or the High Court, should never create any apprehension in the mind of a party that his cause will not be impartially heard and determined; nor can it ever be urged that friendship with a party creates in the mind of the Judge such bias as to paralyse his mind from rightly adjudicating on the merits of the dispute or that for that reason the Judge becomes a party interested in the cause and therefore disqualified to be a Judge in that cause. The matter is essentially one of propriety and good sense, and though Judges are always alive to the susceptibilities of the parties in this respect, the situation is entirely outside the principle that justice should not only be done but should manifestly appear to be done." 11. The learned Attorney-General has also referred to Para. 67 Volume I of Halsbury's Laws of England (Fourth Edition) to the following effect on the subject that none can be Judge in his own cause:- "Where persons having a direct interest in the subject-matter of an inquiry before an inferior tribunal take part in adjudicating upon it, the tribunal is improperly constituted and the Court will grant an order of prohibition to prevent it from adjudicating, or an order of certiorari to quash a determination arrived at by it, or such other remedy (for instance, an injunction or a declaration) as may be appropriate. The principle extends not only to Courts and tribunals, but also to other bodies, including public authorities, determining questions affecting the civil rights of individuals." ' He extensively referred to commentaries from Second Edition of 'De-Smith's Administrative Law' page 239 and 'Natural Justice' by Marshal, 1959 pages 27 to 29 to contend that even small pecuniary interest acts as a disqualification vitiating the entire proceedings in which adjudicators suffering from such qualification participate. 12. The learned Attorney-General has indeed invoked a very salutary, non-controversial, and fully entrenched juridical principle of high standing relating to Administration of Justice and to quasi- Judicial adjudications. But the principle is not attracted to the case and its invocation and application to these proceedings will seriously impair and subvert that very principle rather then advance it. 13. A few words about the principle itself on which the submissions are based. It has been noted in the-following words in Flick's "Natural Justice" (1979 Edition at page 113):- "Although the days have long since passed in which such exalted judges as Lords Bacon and Macclesfield willingly accepted bribes and sold offices, there is no more firmly established principle of law today than that no man is qualified to adjudicate upon a matter with regard to which he
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stands to gain or lose financially as a direct result of his decision: de Smith at 225-27; Davis ,5 12.03; Cooper at 343-44. In such cases the mere existence of the pecuniary interest is sufficient to disqualify and an aggrieved party need not go to prove a real likelihood of bias. Nor need one prove that the decision was influenced in any way by the interest. Thus, in yet another decision involving an English Lord Chancellor, the House of Lords has held that Lord Cottenham could not pronounce a decree in favour of a canal company in which he held shares worth several thousand pounds. During the course of his judgment, Lord Campbell observed: ' No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of th,e last importance that the maxim that no man is to be a judge in his own cause 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 whichlie has an interest....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." 14. Three criteria, identified by the author on the basis of decisions, place some limitations upon the operation of general rule just stated and these find mention as hereunder:- (a) "The first limitation to the general rule is that a decision maker must stand to gain or lose personally as a result of his decision and, unless, this can be shown, any disqualification must be founded upon the existence of a real likelihood of bias having regard to all the circumstances of the case. Consistent with this view, it has been held that justices who were trustees of funds invested with a local corporation could decide a matter involving that corporation and an argument that the trustees' partiality may have been affected by their tendency to favour a decision which would improve the security of their cestui que trusts was classified as an objection "not in the nature of interest, but of a challenge to the favour" ." (b) "a second limitation is that this interest will not be objectionable if it is remote or arises upon a purely speculative series of events.". (c) "Substantiality of interest may provide a third limitation to the pecuniary interest rule. Such a proposition has the support of Professor Davis (Davis 12.03 at 154), and the Supreme Court decision in Tumey v. Ohio (273 US at 523); although the value of this precedent is somewhat diminished by the modification of the conventional meaning of the word "substantial" to the effect that due process requires disqualification if the interest is more than de minimis." 15. Marshall in 'Natural Justice' (1959 Edition) defines 'interest' as "a legal interest or a pecuniary interest and is to be distinguished from 'favour'." Distinguishing one from the other the author at page 32 states as hereunder:- "favour should not be presumed in a Judge. Herein lies the distinction between a pecuniary or "legal" interest and a non-pecuniary bias. In the former case the smallest interest immediately disqualifies; in the latter case disqualification is not automatic. On the contrary, In order to have that effect the bias must be shown at least to be real. Blackburn, J. Said in R. v. Rand in 1866: (1866) L.R. 1 Q.B. 230, 232. "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." ' And in R. v. Meyer in 187,5 (1875) 1 Q.B.D. 173 the same Judge said: "... Though disqualifying interest is not confined to pecuniary interest, the interest if not pecuniary, must be substantial." ' He then goes on to refer to the Court's decision in R. v. Rand, and says:
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"The effect of our judgment in that case was that, though pecuniary interest in the subject-matter of dispute, however small, disqualifies the Justices, yet the mere possibility of bias did not ipso facto avoid the justices' decision; and we thought that, though there was a possibility of bias in that case, yet it was not real." 16. Taking up the subject of pecuniary interest the author thereafter summarises the facts of the leading authority on the subject, Dimes v. Grand Junction Canal (1852) 3 H.L. Cas 759 in the following words at page 25:- "It is a case of the highest possible authority because it was a decision of the House of Lords, presided over by the Lord Chancellor of the day (Lord St. Leonards), as to the effect of the conduct of a previous Lord Chancellor (Lord Cottenham). The facts were that a public company, which was incorporated, filed a bill in equity against a landowner, in a matter largely involving the interests of the Company. The Lord Chancellor (Cottenham) had an interest as a share-holder in the company to the amount of several thousand pounds, a fact which was unknown to the defendant in the suit. The cause was heard before the Vice-Chancellor, who granted the relief sought by the company. The. Lord Chancellor, on appeal, affirmed the order of the Vice-Chancellor. It was held on appeal to the House of Lords that, the Lord Chancellor (who had by then ceased to hold office as such) was disqualified, on the ground of interest, from sitting as a Judge in the cause and that his decree was, therefore, voidable and must consequently be reversed. It was also held that the Vice-Chancellor was under the Administration of Justice Act, 1813, a Judge subordinate to, but not dependent on the Lord Chancellor and that consequently the disqualification of the Lord Chancellor did not affect him; but that his decree might be made the subject of appeal to the House of Lords." 17. The underlying principle has been explained in the judgment of Lord Campbell, C.J. In that case in the following words:- "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.". ' The principles emerging from various decisions have been summarized by the author at p. 27 in the following words:- "This rule has been stated many times but the following dicta may be quoted: "There is no doubt that any direct pecuniary interest however small in the subject of inquiry does disqualify a person from acting as a Judge in the matter." Blackburn J. In R. v. Rand (1866) L.R. 230, 232." "If he has any legal interest in the decision of the question one way he is disqualified no matter how small the interest may be." Lush, J. In Serjeant v. Dale (1877) 2 Q.B.D. 558, 567. "....The least pecuniary interest in the subject-matter of the litigation will disqualify any person from acting as a Judge." Stephen, J. In R. v. Farrant (1887) 20 Q.D.B. 58, 60. ",,..a person who has a judicial duty to perform disqualifies himself from performing it if he has a pecuniary interest in the decision which he is about to give or a bias which renders him otherwise than an impartial Judge. If he has a pecuniary interest in the success of the accusation he must
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not be a Judge." Bowen L.J. In Leeson v. General Council of Medical Education. (1889) 43 Ch. D..366, 384." ' The strictness of the principle has been explained by Lush, J. In Serjeant v. Dale (1877) 2 Q.B.D. 558 at 567 ill the following words:- "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." 18. This has been done by Lord Esher also in Eckersley v. Mersey Docks & Harbour Board (1894) 2 Q.B. 667 at 671 in the following Nords: " the doctrine which is applied to Judges, not merely of the superior Courts, but to all Judges, that, not only must they be not biased, but that, even though it be demonstrated that they would not be biased, they ought not to act as Judges in a matter where the circumstances are such that people--not necessarily reasonable people, but many people-- would suspect them of being biased." 19. 'Pecuniary interest has been contrasted with non-pecuniary iterest in the following words in an Article by Francis Alexis under the heading "Reasonableness in the Establishing of Bias" appearing in 1979 Volume of 'Public Law' at page 143. The author has contrasted it as hereunder at page 159:- "By contrast, once there is a direct and certain pecuniary interest, not merely remote, speculative, or contingent, See R.v. Rand (1866) L.R. 1 Q.B. 230, D.C.; R. v. Deal Justices (1881) an adjudicator is disqualified. He is disqualified by "even the slightest pecuniary interest," as applied in R. v. Gaisford (1892) 1 Q.B. 381 at p. 384 (Mathew J.), no matter "however small", .Be it "less than a farthing", as the English Judge, Blackburn, J., put it. R. v. Rand (1866) L.R. 1 Q.B. 230 at p. 232; R. v. Hammond (1863) 9 Law Reporter 423 at p.423 respectively.". 20. In an Article appearing in Harvard Law…
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