IN THE SUPREME COURT OF PAKISTAN

(ORIGINAL JURISDICTION)

 Constitutional Original Petition No._________ of 2007-05-21

Chief Justice of Pakistan

Mr Justice Iftikhar Muhammad Chaudhry,

Chief Justice House, Islamabad.

                                                                                                ……………..Petitioner  

VERSUS

1.  The President of Pakistan

(As the Referring Authority

Under Article 209 of the Constitution),

Through the Secretary to the President

The Presidency, Islamabad 

2.   The Federation of Pakistan

Through the Secretary Law and Justice,

Civil Secretariat, Islamabad 

3.   Supreme Judicial Council,

Through its Secretary,

Supreme Court Building, Islamabad 

4.   Registrar, Supreme Court of Pakistan,

Supreme Court Building, Islamabad 

5.   Registrar Sindh High Court

High Court Building, Karachi

6.    Registrar, Lahore High Court

High Court Building, The Mall, Lahore

1.                  The first named amicus, the Bar Human Rights Committee (“BHRC”) is the international human rights arm of the Bar of England and Wales. It is an independent body primarily concerned with the protection of the rights of advocates and judges around the world. It is also concerned with defending the rule of law and internationally recognised legal standards relating to the right to a fair trial. 

2.                  The second named amicus, the Solicitors International Human Rights Group (“SIHRG”) is the Solicitors International Human Rights Group (“SIHRG”) promotes awareness of international human rights within the legal profession and mobilises solicitors into effective action in support of those rights. The Group encourages human rights lawyers overseas and conducts related missions, research, campaigns and training. The SIHRG’s organisation is designed to promote the application of solicitors’ skills in realising the observance of international human rights standards. 

3.                  This brief is submitted in support of the Petitioner. Its purpose is to explain the relevant common law principles in relation to the impartiality and independence of judges. 

I. The impartiality of judges is central to the rule of law. In this regard a judge must not only be unbiased and impartial; he must be seen to be unbiased and impartial. Furthermore, a judge with a financial or any other interest in a matter in dispute is automatically disqualified[1] from sitting.  

5.                  One of the leading English authorities on impartiality is Reg v Bow Street Magistrate, Ex p. Pinochet (no. 2) HL (E) 2000 1 AC 119. In that case the House of Lords set aside its own earlier decision[2] on the grounds that one of the Judges who had made that decision (Lord Hoffman) was a director of a company controlled by one of the parties to the proceedings (Amnesty International). The House of Lords set aside the earlier decision even though Lord Hoffman was not alleged to have any financial interest in the proceedings and even though there was no suggestion of actual subjective bias or impartiality on the part of Lord Hoffman. The Amici wish to emphasise the following passages from the Judgments: 

“. . . the principle which governs this matter is that a man shall not be a judge in his own cause . . . this principle is not confined to a cause to which the judge is a party, but also applies to a cause in which he has an interest . . .

Your Lordships are concerned with a case in which a judge is closely connected with a party to the proceedings . . . He will by reason of his position be committed to the well-being of the charity and to the fulfillment by the charity of its charitable objects. He may for that reason properly be said to have an interest in the outcome of the litigation, though he has no financial interest, and so to be disqualified from sitting as a judge in the proceedings . . .

It is important to observe that this conclusion is, in my opinion, in no way dependent on Lord Hoffman personally holding any view, or having any objective, regarding the question whether Senator Pinochet should be extradited, nor is it dependent on any bias or apparent bias on his part. Any suggestion of bias on his part was, of course, disclaimed by those representing Senator Pinochet . . .” (per Lord Goff at pp137 to 139).

“One of the cornerstones or our legal system is the impartiality of the tribunals by which justice is administered. In civil litigation the guiding principle is that no one may be a judge in his own cause . . . It is not confined to cases where the judge is a party to the proceedings. It is applied also to cases where he has a personal or pecuniary in the outcome, however small . . .

. . . the nature of the interest is such that public confidence in the administration of justice requires that the judge must withdraw from the case or, if he fails to disclose his interest and sits in judgment upon his it, the decision cannot stand. It is no answer for the judge to say that he is in fact impartial and that he will abide by his judicial oath. The purpose of the disqualification is to preserve the administration of justice from any suspicion of partiality. The disqualification does not follow automatically in the strict sense of the word, because the parties to the suit may waive the objection. But no further investigation is necessary and, if the interest is not disclosed, the consequence is inevitable.

. . . it may be said of all the various tests which I have mentioned, including the maxim that no one may be a judge in his own cause, that they are all founded upon the same principle. Where a judge is performing a judicial duty, he must not only bring to the discharge of that duty an unbiased and impartial mind. He must be seen to be impartial.” (per Lord Hope at pp140-142)

“ … the question of impartiality, actual or perceived, has to be judged from the very moment when the judge or tribunal becomes first seized of the case….The principle of the common law on which these cases depend is the need to preserve public confidence in the administration of justice. It is no answer for the judge to say that he is in fact impartial, that he abided by his judicial oath and there was a fair trial. The administration of justice must be preserved from any suspicion that a judge lacks independence or that he is not impartial. If there are grounds which would be sufficient to create in the mind of a reasonable man a doubt about the judge’s impartiality, the inevitable result is that the judge is disqualified from taking any further part in the case. No further investigation is necessary, and any decisions he may have made cannot stand” (per Lord Hope paragraph 63, 65).

II. The indepedence of the judiciary from the executive is also central to the rule of law. Judges must not only be independent; they must be seen to be independent.  Independence requires sufficient guarantees against outside pressure by the executive.

7.                  The importance of judicial independence from the executive is long established in the Common Law. In 1765 Sir William Blackstone wrote:

"In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure by the Crown, consists one main preservative of the public's liberty which cannot subsist long in any state, unless the administration of justice be in some degree separated both from the legislative and also from the executive power."[5]

9.                  Even so, in recent years the influence of the European Convention on Human Rights and Fundamental Freedoms has led to structural changes within the judiciary of both England and Scotland in order to buttress that independence and to avoid even the suspicion that it might in any way be compromised[6]. The Convention was agreed in Rome in 1950. One of the fundamental rights guaranteed was the right to trial by an independent and impartial tribunal (See article 6(1)[7]). The concepts of independence and impartiality are of course closely linked.  

10.              Consistent streams of authority have developed in the European Court of Human Rights, in the UK Courts (including Scotland) and in the Privy Council on the meaning and importance of  judicial “independence”.  

11.              The European Court of Human Rights and the European Commission of Human Rights have developed substantial relevant jurisprudence. A tribunal must be independent of the executive, the parties and the legislature. Although judicial appointment by the executive or the legislature is permissible under article 6 the appointees must be free from influence or pressure when carrying out their adjudicatory role[8]. In deciding whether this requirement is met regard must be had to the manner of appointment, the term of office, the existence of guarantees against outside pressures and whether the tribunal presents an appearance of independence[9].  

12.              The appearance of both independence and impartiality is important because "what is at stake is the confidence which the courts in a democratic society must inspire in the public"[10]. The applicable test has been described in a number of ways: whether the public is "reasonably entitled" to entertain doubts as to the independence or impartiality of the tribunal [11]; whether there are  “legitimate grounds for fearing" that the tribunal is not independent and impartial [12]; whether "there are ascertainable facts that may raise doubts" as to that independence or impartiality [13]; or whether such doubts can be "objectively justified" [14].” 

13.              In Starrs v Ruxton 2000 JC 208, the High Court of Scotland held that the “temporary sheriff system”, whereby certain judges were appointed for one year terms, which were then controlled at the discretion of the Lord Advocate, (a member of the executive) breached the requirements of “independence” in Article 6(1) of the European Convention of Human Rights. The following passage from the judgment of Lord Reed is material:“There is however, no objective guarantee of security of tenure . . . and I regard the absence of such a guarantee as fatal to the compatibility of the present system with Article 6. I would readily accept that [the Lord Advocate would not interfere with the performance of judicial functions]; but that is not the point. Judicial independence can be threatened not only by interference by the executive, but also by a judge’s being influenced, consciously or unconsciously, by his hopes and fears as to his possible treatment by the executive. It is for that reason that a judge must not be dependent on the executive, however well the executive may behave: “independence” connotes the absence of dependence”[15] 

14.              In Millar v Dickson (cited above), the Privy Council had to consider some of the practical consequences of the decision in the Starrs case. At the outset of his judgment Lord Hope observed generally[16]: “Central to the rule of law in a modern democratic society is the principle that the judiciary must be, and must be seen to be, independent of the executive. Writing on the independence of the judiciary . . . Lord Fraser of Tullybelton identified security of tenure and immunity from suit as the two most important ways of ensuring that judges perform their duties impartially and without fear of the consequences. Of these, security of tenure is the more vulnerable to erosion at the hands of the executive.”  

CONCLUSION

15.              It is therefore submitted that at common law the position of any member of the Supreme Judicial Council, charged with hearing the complaints against the Chief Justice would be as follows: 1)     Any grounds for reasonable doubt as to his impartiality would disqualify him from sitting. Such grounds would exist where the member had, or appeared to have, a personal interest, however small, in the outcome of the dispute.  2)     Any grounds for reasonable doubt as to his independence would disqualify him from sitting. Such grounds would exist where the member had or appeared an incentive, no matter how small, to decide the case in favour of the executive. Such incentive would include the hope of preferment, the hope of maintaining a position conferred by the executive and the fear of losing such position. 

16.              Furthermore, the dismissal of the Chief Justice as a result of a process that was not perceived to be both independent and impartial would have a chilling effect on the independence of the judiciary of Pakistan. Judges would feel under pressure to make decisions in favour of the executive, for fear of the consequences to themselves if they failed to do so. Signed etc ………………….. 

[1] Unless the interest is disclosed by the judge and waived by the parties.

[2] Refusing to quash extradition warrants issued against Senator Pinochet: see R. v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (No.1) [2000] 1 A.C. 61

[3] As the Court will be aware, under the United Kingdom’s legal system appeals from Scotland are heard by the Privy Council which is comprised of the same judges as the Judicial Committee of the House of Lords.

[4] The Privy Council was considering the legality of trials which had taken place before “temporary sheriffs” in Scotland; in an earlier decision (Starrs v Ruxton) the temporary sheriff system had been held to breach the requirement of “independence”. Both the Millar decision and the Starrs decision are discussed further below at paragraphs 13 and 14.

[6] See for example the cases of Starrs v Ruxton and Millar v Dickson cited below

[8] Campbell and Fell v UK (1985 (E.H.R.R. 165 para. 78; Crociani and ors v Italy  No 8603/79 22 D.R. 147

[9] Langborger v Sweden (1990) 12 E.H.R.R. 416 para. 32; Incal v Turkey (2000) 29 E.H.R.R. 449;,

Piersack v Belgium (1983) 5 E.H.R.R. 169, para 27

 [10]  Incal (supra)  para. 71

[11] Campbell and Fell (supra) at para. 81

[12] Langborger (supra) at para. 35

[13] Castillo Algar v Spain (2000) 30 E.H.R.R. 827

 [14] Hauchshildt v Denmark (1990) 12 E.H.R.R. 266, para. 48

[15] Quoted by Lord Bingham in Millar v Dickson at p1621

[16] Ie without specific reference to Article 6(1) of the ECHR