Petitions against audio leaks commission: Govt objects to three judges on SC bench

ISLAMABAD: The government on Tuesday requested Chief Justice of Pakistan Justice Umer Ata Bandial to reconstitute the bench for hearing the pleas challenging the government’s notification to constitute a Judicial Commission for probing the veracity of alleged audios leaks.

In a related development, Defence Minister Khawaja Muhammad Asif asked the Chief Justice of Pakistan Umar Ata Bandial to distance himself from hearing the audio leaks case due to a clash of interest but stressed that unlike in the past, such precedents have now been abandoned by judges of the apex court. He also warned “parliament will retaliate if its authority or writ comes under attack, the house will counterattack.”

The federal government filed a civil miscellaneous application (CMA) in the apex court requesting that Chief Justice Umer Ata Bandial, Justice Ijazul Ahsen and Justice Munib Akhtar recuse themselves from the five-member larger bench hearing the instant matter.

A five-member larger bench of the apex court, headed by Chief Justice Umer Ata Bandial and comprising Justice Ijazul Ahsen, Justice Munib Akhtar, Justice Syed Hassan Azhar Rizvi and Justice Shahid Waheed, will take up today (Wednesday) at 12:15 pm, the petitions challenging the government’s notification issued on May 19.

On May 26, the larger bench had suspended the operation of government’s notification, constituting a Judicial Commission for probing the veracity of alleged audios and halted until May 31 the proceedings of the commission. “In the circumstances, till the next date of hearing, the operation of the impugned notification No.SRO.596(I)/2023 dated 19.05.2023 issued by the Federal Government is suspended as is the order dated 22.05.2023 made by the Commission and in consequence thereof proceedings of the Commission are stayed”, Chief Justice Umer Ata Bandial had announced in a short order. It issued notices to all the respondents in the petitions besides issuing a notice to Attorney General for May 31. Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan, Abid S Zubairi, Muqtedir Akhtar Shabbir, President and Secretary Supreme Court Bar Association (SCBA), and advocate Riaz Hanif Rai had challenged the notification. They demanded the apex court to declare the impugned notification as ultra vires to the Constitution. They had also prayed to the apex court to suspend the proceedings of the Inquiry Commission on audio leaks and any order passed by it.

In its CMA, the federal government submitted that the inclusion of the Chief Justice on the bench hearing the instant matter that seeks to challenge the very Inquiry Commission formed to investigate audio leaks pertaining to very close family members of the Chief Justice, contributes to and raises grave concerns vis-à-vis the appearance of impartiality.

That the objections raised only to the appearance of impartiality and conflict of interest and therefore are distinct and separate to bias, which has neither been raised nor is the contention of the respondent (Federation), the government submitted.

It is pertinent to mention here that the Inquiry Commission probing the veracity of alleged audio leaks also includes the audio of the mother-in-law’s conversation with the wife of advocate Khwaja Tariq Rahim. In the CMA, the government contended that owing to the past practice of the apex court and specifically in PLD 2012 Supreme Court 664 Suo Moto Action regarding an allegation of a business deal between Malik Riaz Hussain and Dr Arsalan Iftikhar attempting to influence the judicial process, the then Chief Justice Iftikhar Muhammad Chaudhry recused to hear the matter as the allegations were levied against his son.

The government pointed out that the audio leaks concerned two other members of this bench, one audio leak pertains to the conversation between the petitioner (Abid Zubairi) in constitutional petition No 14/2023 and the then Chief Minister, discussing the case of CCPO (Ghulam Muhammad Dogar versus FOP and others CP No 3988/2022 Lahore. The government submitted that the bench hearing the aforesaid case was headed by Justice Ijazul Ahsen while another leak is about a conversation between a senior lawyer’s wife and the mother-in-law of the Chief Justice of Pakistan wherein reference has been made to another judge of this bench, Justice Munib Akhtar. “Consequently, propriety and good sense dictate and demand that Justice Ijazul Ahsen and Justice Munib Akhtar may graciously recuse themselves from hearing the instant petition,” the government prayed.

It further submitted that the decision to recuse oneself from a case due to a conflict of interest is typically guided by the Code of Conduct, oath of the office ensuring that the integrity and impartiality of the court remain intact, the federal government submitted. It prayed to the Chief Justice of Pakistan to reconstitute the bench to decide the questions raised in the instant petitions.

The federal government had constituted a three-member Judicial Commission headed by Justice Qazi Faez Isa and comprising Chief Justice Balochistan High Court Naeem Akhtar Afghan and Chief Justice Islamabad High Court Justice Aamir Farooq to probe the veracity of the alleged audio leaks and their impact on the independence of the judiciary.

In a related development, Defence Minister Khawaja Muhammad Asif warned the top judiciary against dictating and trespassing territory of the parliament. Speaking on a point of order in the National Assembly, the defence minister recalled that former chief justice Iftikhar Muhammad Chaudhry also rescued himself from hearing a case which involved a legal battle between his son and Malik Riaz. “But it seems that such precedents have now been abandoned by judges of the apex court,” he said. He said the government had constituted the judicial commission on the audio leaks issue to ascertain the facts. He regretted that the Chief Justice scuttled the senior judge of the Supreme Court and two chief justices of Balochistan and Islamabad High Court from the commission, saying the government did not appoint members of parliament or any other persons from outside the judiciary. “We want an end to the one-man show in the apex court. We want transparency of justice to be increased as we don’t want any confrontation with the judiciary,” he added.

“It was expected that the chief justice would leave this matter to the commission as it also involved his mother-in-law,” said the defence minister.

The defence minister said the government constituted an inquiry commission to probe the leaked audios of various people, including that of the mother-in-law of Supreme Court Chief Justice Umar Ata Bandial and a son of the former chief justice Saqib Nisar of the apex court.

Expressing concerns over the confidence in senior judges of the judiciary by the Chief Justice, Khawaja Asif said that good traditions are not being set. “But one should not sit on the chair of the justice if he, directly or indirectly, is involved in a matter or accused of something,” he said.

Asif said the government did not include Chief Justice Umar Ata Bandial in the commission because of the conflict of interest as it was tasked to investigate the audio leaks of her mother-in-law as well. “There have been examples that children of some chief justices would not like to stand by their fathers due to their objectionable decisions,” he said.

Referring to orders of the Chief Justice to stop implementation of the Supreme Court Practice and Procedure Blll, 2023, Khawaja Asif said the principle of trichotomy of power as enshrined in the Constitution, desires that no institution, including the judiciary, could dictate others. He pointed out that the government and parliament wanted to enhance the respect and honour of the judiciary and strengthen the judicial system but warned the top judiciary against dictating and trespassing territory of the parliament. “Parliament will retaliate if its authority is challenged and if our writ comes under attack, the house will counterattack,” the defence minister said. He said the government had formed a commission and it was stopped from operating by the chief justice. “The judiciary cannot dictate the parliament as it is independent,” he added.