Executive warned against interfering in SC affairs

ISLAMABAD: The Supreme Court on Tuesday raised questions over the formation of audio leaks commission and held that nobody could use the office of chief justice on mere assumptions. It warned the executive to refrain from interfering with the Supreme Court’s affairs. Expressing his frustration at one point during the hearing, CJP Umer Ata Bandial observed that judges were first ridiculed through the alleged audio leaks and later a commission was constituted for probing the matter. “Wow, what justice with the judiciary,” he quipped. A five-member bench of the apex court, headed by Chief Justice Umer Ata Bandial, heard the petitions challenging the government’s notification, constituting an Inquiry Commission for probing the veracity of alleged audio leaks, involving the current and former members of the judiciary and their families. Other members include Justice Ijazul Ahsen, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.

Attorney General Mansoor Usman Awan as well as Shoaib Shaheen, counsel for one of the petitioners, appeared before the court and completed their arguments. The SC bench adjourned the hearing on the three-member Judicial Commission indefinitely.During the course of hearing, Chief Justice Umer Ata Bandial observed that the government totally ignored the office of Chief Justice of Pakistan while constituting the Inquiry Commission on alleged audio leaks. “The office of chief justice of Pakistan is constitutional and nobody could use his office on mere assumptions,” the CJP remarked. “A judge cannot be made a party to a contempt petition,” he said, adding that a chief justice cannot be asked to leave a bench upon allegations.

“The powers of the chief justice or a judge cannot be reduced as per requirement,” he said. He warned the executive to refrain from interfering in the powers of the court. “Chief justice was available but he was not informed about the constitution of audio leaks commission,” the CJP told Attorney General. “Please understand the law before citing court decisions,” the CJP added. The AGP submitted that he will first argue on the constitution of the bench hearing pleas challenging the formation of audio leaks commission. “But if you are leading to the point that three of the judges were controversial, then you will have to establish that they have a conflict of interest in the matter,” the CJP told the AG. The second issue relates to the independence of the judiciary, the CJP continued.

CJ Bandial said that the chief justice is the only forum which can decide whether an SC judge could be spared or not. The CJP also asked what the objective of maligning judges through these audio leaks could be. The AGP read out the terms of reference of the commission saying one audio was related to mother-in-law of the chief justice. At present, whether your case is that prima facie audio leaks are genuine, Justice Munib Akhtar asked the AG. The AG replied that so far the government has formed the commission to ascertain the facts. Justice Munib Akhtar asked the AG, “Whether the government was not aware as to audio leaks were genuine or not,” adding senior cabinet members had held a press conference on it. “Is it not true that the federal interior minister has held a press conference on this and ran audio clips?” Justice Munib asked the AG and further questioned, “Is it lawful for someone who does not even know about the truth of audio leaks to raise objections on the bench?” The judge asked why the interior minister held a press conference and whether such carelessness was shown. “After such a statement, the minister should have been removed or he should have resigned,” Justice Munib remarked.

The AG, however, asked as to whether the statement of a minister could be considered the stance of the government in this regard. The AG, however, expressed his ignorance that someone had held a press conference. At that, the AGP asked the court to see if the interior minister’s statement was issued before May 19 or after. “Wow, what justice with the judiciary,” the CJP quipped. Chief Justice Bandial observed that judges were first ridiculed through the alleged audio and later a commission was constituted for probing the matter. The AG, however, submitted that the government wanted to take it to conclusion after investigating it.

“But the question here is as to who planted these audios/videos and whether the government has ever tried to ascertain who was doing this,” the Chief Justice asked the AG. The AG, however, submitted that the commission will also look into it as well adding that the commission will examine all those matters how calls were recorded, etc. He said the matter was in its initial stage and as per the government, these were alleged audios. At the outset of the hearing, Justice Munib Akhtar referred to the judgment of the apex court in former prime minister Benazir Bhutto’s case adding that no objection was raised on the bench while hearing the matter. The judge observed that the phones of four out of seven judges were recorded and questioned as to whether the judges did not take the right decision in that case.

The attorney general, however, contended that the government’s case was not based on bias but on conflict of interest. This prompted the Chief Justice to ask the AG whether the government’s objection was confined to judicial proceedings or also related to administrative affairs of the apex court. The attorney general submitted that the government has no ill-intention adding that by constituting another bench, the rights of petitioners will not be affected. He appealed to the court to review the request for reconstituting the bench for hearing the matter in hand. Meanwhile, Shoaib Shaheen, counsel for the petitioner Abid S Zubairi, while commencing his arguments, submitted that the Terms of Reference (TORs) farmed for the Inquiry Commission did not mention as to who was involved in the alleged phone tapping calls. He contended that all the alleged audios were brought through by one hacker adding that the alleged audios came to the surface after the court took up suo motu notice on holding of elections in Punjab. When the federal government was the respondent in the Punjab elections case, then how it could constitute an Inquiry Commission for probing the audio leaks, Shaheen questioned.

Advancing his arguments, the counsel for the petitioner submitted that there is a constitutional case before the apex court regarding executive interference in the judiciary and the court is going to give its interpretations but not to give a verdict either in someone’s favour or against. “Whether we should accept the audio leaks without going into facts as to who is behind that,” the counsel questioned adding that it will very easy for blackmailing someone by making fake audios. Shaheen submitted that people of the country were looking forward to the independence of the judiciary and implementation of its decisions, therefore, he contended that independence of the judiciary is of immense importance. The learned counsel further questioned as to why the Pakistan Electronic Media Regulatory Authority (PEMRA) kept mum over the matter and pleaded with the court to summon records from the regulatory body. He submitted that a conspiracy had been hatched for dividing the judiciary. He pleaded with the court to maintain the stay over the proceedings of the Inquiry Commission probing the veracity of alleged audio leaks. The Chief Justice said that the stay on the proceedings of the Inquiry Commission on audio leaks was intact.

Meanwhile, Attorney General Mansoor Usman Awan told the court that the government’s request was only for the reconstitution of the bench to hear the instant matter not based on bias but on conflict of interest. He pleaded with the court to overlook the arguments by the petitioner’s counsel. The Chief Justice appreciated both Attorney General as well as Shoaib Shaheen’s arguments and observed that the court would think over it. The Chief Justice further said that the court will also give its decision over the government’s request for reconstituting the bench and adjourned the hearing for a date-in-office i.e. an indefinite period.