PDM May 15 power show attack on judiciary: Supreme Court

ISLAMABAD: The Supreme Court on Friday declared that May 15 power show in the Red Zone by the ruling coalition parties and assisted by the federal government was a direct attack on the independence of the judiciary.

A five-member bench of the apex court, headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, announced the reserved verdict after three months on the matter regarding objections raised by the former coalition government. The PDM government sought recusal of Justice Bandial from the bench hearing identical petitions challenging the formation of 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 of the bench included Justice Ijazul Ahsen, Justice Munib Akhtar, Justice Hassan Azhar Rizvi and Justice Shahid Waheed.

“The recusal application filed by the federal government is declared to be devoid of merit and legal force,” said a 32-page verdict authored by the CJP.

The court held that the objection lacks good faith and aims at harassing a member of the bench without cause in order to avoid adjudication on the constitutional failings pointed out in the impugned notification by constitution petitions.

“To our minds, the recusal application suffers from the common defect of being motivated and hence constitutes an attack on the independence of the judiciary,” the verdict held and dismissed the recusal application of the previous federal government.

The chief justice noted that the judgment would decide the federal government’s CMA No3932 of 2023 (“recusal application”), filed in constitution petition that seeks the recusal of three learned members of the bench -- Justice Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar.

However, the recusal application was ultimately confined only to the extent of the CJP, the verdict said.

The larger bench on June 6, while hearing the matter, had raised questions over the formation of audio leaks commission, and held that nobody could use the office of chief justice on mere assumptions.

Supreme Court Bar Association (SCBA) President Abid Shahid Zubairi, PTI Chairman Imran Khan and advocate Riaz Hanif Rai had challenged the three-member Inquiry Commission constituted by the previous federal government for probing the veracity of alleged audio leaks.

The CJP had observed that the government totally ignored the office of Chief Justice of Pakistan while constituting the Inquiry Commission on alleged audio leaks.

“Chief Justice was available but he was not informed about the constitution of audio leaks commission,” the CJP had told the attorney general (AG).

The court had reserved the verdict on the plea of the-then federal government seeking recusal of three judges, including the chief justice from the bench hearing the pleas challenging constitution of three-member Inquiry Commission led by Justice Qazi Faez Isa with Chief Justices of Islamabad and Balochistan high courts as members.

The court had also restrained the commission from going ahead with its task of probing.

On Friday, the court in its judgment noted that the AG made a verbal request to the bench that one of members of the bench -- the CJP -- may consider recusing himself from the bench for the reason that one of the audio recordings selected for probe by the commission allegedly contains a conversation of his relative that mentions him.

“The order dated 26.05.2023 disapproved this oral request of the learned AG for failing to refer to any implicating conversation of the relative and/ or to the particulars of the allegation levelled against the CJ,” said the verdict.

However, the court noted that as important constitutional questions of law were raised and explained by the petitioner’s counsel, the said order of 26.05.2023 granted the interim relief sought by him in the CMA.

The counsel also prayed for interim relief since the commission had already started functioning and made an order on 22.05.2023 and the next meeting of the commission was scheduled for 27.05.2023.

“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.”

The court noted that the matter was adjourned to 31.05.2023 when the AG pressed the freshly filed recusal application on which notice was issued to the parties for arguments of the counsel on 06.06.2023.

The judgment said that the AG recorded two preliminary points: i. He would not be pressing for the recusal of either Justice Ijazul Ahsan or Justice Munib Akhtar; and ii. The sole ground for seeking the recusal of the CJ is his alleged conflict of interest in the matter on account of his relative.

Our judgment is therefore confined to the prayer made for the recusal of the CJP from continuing to sit on the bench, it said.

In support of the recusal application, the AG primarily relied on clause 1 of Article IV of the Code of Conduct for Judges of the Supreme Court and High Courts which reads: “A judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friend.”

The court noted that the AG argued that allegedly the relative of the CJP was conversing in one of the audio recordings, which had been selected for probe by the impugned notification.

“The vires of that notification are under challenge in Const P Nos.14 to 17 of 2023 therefore, to avoid a conflict of interest and to maintain the appearance of impartiality, the CJP should recuse himself from the bench,” said the verdict, adding that the AG submitted that when the rule of necessity did not require his presence on the bench because even after his recusal there would be a sufficient number of judges available for a reconstituted 5-member bench to hear and decide the petitions.

In response, petitioner’s counsel Shoaib Shaheen submitted that the recusal application should be rejected otherwise its acceptance would validate a practice of harassing judges by first maliciously uploading their unverified audios, recorded secretly and unlawfully, anonymously on an unregulated social media platform and then by relying on those audios to seek the recusal of such judges from hearing cases, the court noted in its order.

The court held that a conflict of interest is related to the subject matter of the litigation, adding that this means that the judge, whose recusal is being sought, must have a direct pecuniary, proprietary or personal interest in the litigation.

The court cited a classic example of a judge having a pecuniary interest in a litigation is Dimes v Grand Junction Canal Proprietors [10 ER 301 (1852) (HL)]. In that case, the court noted that the (then) Lord Chancellor, Lord Cottenham, owned a substantial shareholding in Grand Junction Canal which was an incorporated body. In a suit filed by Grand Junction Canal, the Vice-Chancellor granted the relief sought.

The appeal came before the Lord Chancellor who affirmed the decision of the Vice-Chancellor. The matter then came before the House of Lords which reversed the decree of the Lord Chancellor and Lord Campbell, in what is now regarded as the classic formulation on disqualification on the basis of interest, held: “ …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 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…”

Similarly, the court held that it is not the case of the federal government that the CJP or his relative have any direct pecuniary and/ or proprietary interest in the present matter. Instead, it alleges that because the CJP’s relative is involved in one of the audio recordings selected for probe by the commission, therefore, he has a direct personal interest in the outcome of the petitions.

“The failure of the learned AG to identify the specific cause and hence the interest of the CJP or of his relative that may be affected by the said petitions renders the allegation of the federal government against the CJP fanciful,” the judgment said.

Moreover, it held that the CJP’s relative is neither a party in these petitions nor is she claimed to be involved in the controversy under adjudication before the court.

“In these circumstances, Article IV of the CoC has no application to the present case”, the court held, adding that it appears that an illusory claim of conflict of interest has been alleged against the CJP by the federal government to prima facie postpone a decision in the instant constitution petitions, the court held, adding that such an object appears to be in consonance with the federal government’s strategy, discussed later in the judgment, of CMA blocking or delaying the court’s decisions on questions of law requiring the interpretation of constitutional principles.

The court held that it becomes apparent that in the petitions the court is acting solely to safeguard the public cause of upholding the cherished values of separation of powers, the independence of the judiciary and the fundamental rights of privacy and dignity of persons.

“Accordingly, no personal interest of the CJP can inhere in the subject matter of these petitions that pertain only to the determination of constitutional questions of public importance,” the court held.

In fact, to even assume a personal interest of the CJP in the titled petitions a cause promoted by him or a benefit or liability accruing to him would need to be positively identified in the subject matter of the petitions, the verdict maintained.

However, the court held that the AG has failed to do that and, therefore, the CJP cannot be expected to abandon his constitutional duty as a judge hearing constitution petitions on the basis of an unknown and imaginary interest. The court noted that whilst the law of the land grants a judge discretion to recuse from a case if his disqualification is sought, the Holy Quran provides the criteria for guiding the exercise of such discretion: “Surah An-Nisa, Verse 135. The Holy Quran makes it explicit that believers are expected to uphold the scales of justice even if such a course of action goes against their own interest or that of their parents or relatives,” said the judgment, adding that this is because of the higher duty to be impartial and to remain uninfluenced by any interest whilst dispensing justice that is owed by a Muslim to the Almighty. “Therefore, there is no rule of Islamic Law requiring a judge to refrain from administering justice in matters in which his personal interest or that of his relatives is involved,” the judgment maintained, adding that the judge is nevertheless under the onerous obligation that he must not be swayed by any extraneous considerations when deciding a matter.

The court also cited three judgments, delivered by the Supreme Court including Independent Media Corporation, Federation of Pakistan v Muhammad Nawaz Sharif (PLD 2009 SC 284) and Islamic Republic of Pakistan v Abdul Wali Khan (PLD 1976 SC 57) at pg.188.

The court noted that in these cases allegations were levelled against the judges of the court. In Independent Media Corporation case, the recusal of Justice Jawwad S. Khawaja was sought on account of his sister-in-law’s brother being involved in the case before the court.

While in Muhammad Nawaz Sharif (supra), the recusal of judges who had taken oath under the Provisional Constitution Order 2007 was sought on the basis that the petitioner had expressed strong reservations against such acts.

Similarly, in Abdul Wali Khan (supra), the recusal of two judges was sought on the ground that they were previously associated with the case being prepared for the banning of the National Awami Party which was headed by the petitioner, Abdul Wali Khan.

However, rejecting the contentions of the parties seeking recusal in each of the above cases, the court observed that the only exception would be if a judge is unable to dispense justice impartially on account of his/ her interest was for the respective judge(s) to decide whether to continue to sit on the bench or not.

The court noted that in the case of Independent Media Corporation, the court had held that “it is the conscience of the judge himself which must determine his decision to sit on a bench or not”.

“Therefore, apart from failing on both the facts and the law, the federal government’s objection to the CJP’s presence on the bench disregards the Quranic command to a judge i.e. to dispense justice impartially; a rule that is also echoed in the Oath of Office administered to judges under the Constitution,” the judgment said.

Meanwhile, the court noted that the federal government has by various machinations and stratagems managed to delay adjudication by the court and also discredited its judgments.

“This happened when our order dated 01.03.2023 was reinvented to have dismissed the Speaker’s petition by a majority of 4:3 thereby denying its true legal effect. ii. Then without challenging the order dated 04.04.2023 the federal government took refuge behind the ECP’s review petition filed against that order to justify its inaction,” said the judgment.

The court held that the federal government had repeatedly sought recusals of certain judges from benches hearing constitutional cases, including of the CJP in the present matter, on unknown and unspecified grounds of conflict of interest and/or bias.

The court noted that federal ministers had also routinely made incendiary statements on public platforms against judges of the court sitting on benches hearing constitution petitions pertaining to elections to the provincial assemblies to lend strength to the agenda of the federal government.

“The court has faced all such actions of the federal government with tolerance, forbearance and restraint. However, it goes without saying that any refusal to implement a final and therefore binding judgement of the court can be visited with consequences laid down in the Constitution”, said the judgment.

The court noted that the resistance of the federal government and its coalition parties to our proceedings and judgments had also expanded to hurling threats and making scathing attacks, adding that press conference of Minister of Information and Broadcasting Marriyum Aurangzeb, held on 11.05.2023 against certain judges of the court ever since the audio recordings were leaked.

“An extreme example of a personal attack on judges was witnessed on 15.05.2023 when the court was hearing the review petition filed by the ECP against the order of the court dated 04.04.2023 passed in constitution petition directing the General Elections to the Punjab Assembly to be held on 14.05.2023,” the court recalled.

On that day, the court maintained that certain political parties forming part of the ruling coalition staged an aggressive demonstration outside the court threatening the CJP of serious consequences in the event of the court taking coercive action for securing compliance with its order dated 04.04.2023.

“However, the disturbing aspect of the said demonstration was the assistance given by the federal government to its coalition parties to gather and protest against the court in the Red Zone area of Islamabad where such protests are strictly prohibited,” the judgment said. It noted that the government machinery facilitated the entry of the horde of protesters and remained a silent spectator to their slander, the discernible purpose of which was to pressurise the court and its judges into giving a favourable decision or no decision at all. “The power show assisted by the federal government was a direct attack on the independence of the judiciary,” it said.

“Despite the afore-noted constraints under Articles 19 and 68 of the Constitution on discussing the conduct of judges, it is regrettable that amongst others, cabinet members also flouted these constitutional limits,” the verdict said, adding that judges were assailed in harsh and intemperate language to justify the defiance of decisions that were perceived to be detrimental to the federal government and/ or its interests in the matters of the General Elections. The court held that in the face of the federal government’s uncooperative stance the court exercised restraint for the negation of its judgments notwithstanding its constitutional power to punish any person for disobeying any order of the court.

After the apex court announced the judgment, PMLN leader Ataullah Tarar, while addressing a press conference, said that the incumbent judges of the Supreme Court themselves had termed the present apex court as “imperial court” and “one man show”. Referring to Chief Justice Umar Ata Bandial, he said: “Your own court was badly divided, and you could neither even constitute a full bench nor could make your fellow judges sit with you.”

Again refererring to the CJP, he said that you have accused the government and minister in the judgment but you did not refer to your mother-in-law that what was her involvement in a political party. He accused the CJP of giving an NRO to his mother-in-law. He said that in the judgment everything was taken up but the audio leak of the mother-in-law.

Tarar claimed that the Judicial Commission was constituted to confirm the veracity of the audio leaks but a stay order was given against it. He said that if the commission was allowed to continue its work, the audio leak of the mother-in-law would have been investigated, adding that if the leak was a fabricated, she would have been exonerated. Meanwhile, commenting on the SC judgment, PMLN Chief Organiser Maryam Nawaz lamented that Chief Justice Bandial and his like-minded judges sacrificed the sanctity of the judiciary due to the mother-in-law.