SC upholds bench in audio leaks commission case

Overrules PDM govt’s objections, calling them an ‘attack on judiciary’

ISLAMABAD:

The Supreme Court on Friday rejected the Pakistan Democratic Movement (PDM) government’s plea objecting to the bench hearing petitions challenging the audio leaks commission.

Announcing the reserved judgement, Justice Ijazul Ahsan said the objections raised were “an attack on the judiciary”.

The five-member larger bench of the apex court, led by CJ Bandial, has charged the PDM government with delaying the court proceedings as well as non-implementation of its orders about the holding of the Punjab Assembly elections.

"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 judgment of the court can be visited with consequences laid down in the Constitution."

Read Judges kick off ‘open’ probe into audio leaks

The former coalition government had raised objections over the presence of Chief Justice of Pakistan Umar Ata Bandial, Justice Ijazul Ahsan and Justice Muneeb Akhtar on the bench hearing the case.

On May 26, the apex court stayed the proceedings of the commission, which was led by Justice Qazi Faez Isa and included Balochistan High Court Chief Justice Naeem Akhtar Afghan and Islamabad High Court Chief Justice Aamer Farooq as its members.

The five-judge Supreme Court bench, which apart from the three judges, included Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed, issued the order while hearing four petitions filed by PTI Chairman Imran Khan, Supreme Court Bar Association (SCBA) President Abid Zuberi as well as others against the inquiry commission.

The judgement said that at the outs before commencing his submissions on the recusal application, the attorney general for Pakistan recorded two preliminary points: first, he would not be pressing for the recusal of either Justice Ijazul Ahsan or Justice Munib Akhtar; and second, that the sole ground for seeking the recusal of the chief justice of Pakistan is his alleged conflict of interest in the matter on account of his relative.

During the hearing, Awan said the three judges should separate from the bench, while the petitioner's lawyer gave counterarguments.

After hearing the arguments of both parties, the court reserved its verdict, stating that the order of May 26 would stand till the objections raised on the formation of the bench were decided.

The hearing of the case was adjourned for an indefinite period.

The order maintained that it was an accepted and settled constitutional principle, acted upon several times in the constitution of commissions, that whenever a sitting judge was intended to be made a member of the body, the permission of the chief justice of Pakistan had to be sought first.

The order further noted that as the federal government appeared to have acted unilaterally in this matter, a “constitutional principle” of the highest importance had been, prima facie, “breached”.

The commission was entrusted with the responsibility of investigating the alleged audio recording of the mother-in-law of the chief justice. It was also supposed to investigate into the audio clip believed to be featuring the voice of Justice Naqvi.

Besides, the commission was assigned the task of probe into the purported audio recording of Advocate Khawaja Tariq Rahim and other important clips.

In its application, the PDM government had asked Chief Justice Bandial, Justice Ahsan, and Justice Akhtar to distance themselves from the bench since “rules of natural justice” demanded that the “adjudicator should be impartial”.

In addition to the objection raised about the presence of the chief justice on the bench, the application had also pointed out that some of the audio leaks also concerned two other members, Justice Akhtar and Justice Ahsan.

One audio leak pertained to a conversation between petitioner Abid Zuberi and the then chief minister, discussing a case of CCPO Ghulam Mehmood Dogar. The bench hearing the case was headed by Justice Ahsan.

Similarly, another audio leak was about a conversation between a senior lawyer’s wife and the mother-in-law of the CJP, wherein reference was made to Justice Akhtar.

A detailed verdict, authored by CJP Bandial, was issued in the afternoon.

The detailed verdict, a copy of which is available with The Express Tribune, said that the court’s query about how the CJP or his relative’s interest were involved in the case was “neither answered nor explained” by the AGP.

Read: Audio leaks: ruling on judges’ recusal from bench today

“He candidly admitted though that no pecuniary or propriety interest of either the CJP or his relative was tied with the fate of the said petitions. When asked to explain the term ‘conflict of interest’ the learned AGP merely clarified that as a ground of recusal it was distinct from ‘bias’. The latter being an allegation that the federal government had not raised.

“The diffidence of the learned AGP to respond to the court’s questions denotes that the objection of the federal government may have been raised nonchalantly possibly to delay a decision on the merit or to harass the concerned judge,” the order said.

The order said that conflict of interest and bias were indeed grounds on which a party could seek the recusal of a judge from hearing a case.

“Whilst conflict of interest is related to the judge’s interest in the subject matter of a particular case, bias is concerned with his state of mind and his feelings towards the parties appearing before him. Since the learned AGP confined his submissions to the ground of conflict of interest only and not on bias, it is clear that the federal government does not anticipate any prejudice from the CJP,” it said.

It said that the AGP’s failure to identify the specific cause, and the interest of the CJP or his relative rendered the previous government’s allegations against the top judge “fanciful”.

“Moreover, the relative of the CJP is neither a party in these petitions nor is she claimed to be involved in the controversy under adjudication before the court,” the order said.

Therefore, it appeared that the “illusionary claim of conflict of interest” against the chief justice had been alleged, prima facie, to postpone a decision in the case.

“Such an object appears to be consonant with the federal government’s strategy […] of blocking or delaying the court’s decisions on questions of law requiring the interpretation of constitutional principles,” the judgement said.

The judgement also reflected on the previous government’s “inimical” treatment of the top court and some of its judges.

It said that there was a “chain of events” in which the previous government and its ministers had sought to “erode the authority” of the court and to “blemish the stature of some of its Judges with the object of blocking, delaying or distorting the result of the judgments of the court on the constitutional right of the people to be governed by an elected government”.

The order said that the PDM government, through “various machinations and stratagems”, had managed to delay adjudication by the court and also discredited its judgments.

It cited the Supreme Court (Review of Judgments and Orders) Act, 2023 enacted by Parliament — which has since been struck down by the court — seeking repeated recusals of certain judges and “incendiary” remarks made by former ministers as examples.

It also said that the then-government “took refuge” behind the election watchdog’s appeal against the April 4 order of holding elections to the Punjab Assembly.

“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 judgment of the court can be visited with consequences laid down in the Constitution,” it said.

The order said that the application filed by the federal government was declared to be “devoid of merit and legal force”.

“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. In view of the foregoing, the recusal application is dismissed,” the order said.