SC admits govt plea against bench as hearing on audio leaks commission adjourned
Pakistan
Govt has asked three of the judges to recuse themselves from the bench
ISLAMABAD (Dunya News) – The Supreme Court on Wednesday adjourned the hearing on constitutional petitions filed by PTI Chairman Imran Khan and others against an inquiry commission formed by the federal government to probe the leaked audios allegedly involving judges.
A five-member bench headed by Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Shahid Waheed and Justice Hasan Azhar Rizvi conducted a brief hearing.
The chief justice directed the registrar to give a diary number to the objection raised by the Attorney General for Pakistan (AGP) Mansoor Usman Awan regarding the composition of the bench. CJP Bandial said the government’s petition against the bench would be heard in the next hearing. He also issued directives to provide copies of all petitions to the AGP.
At one point, the chief justice remarked that the inquiry commission had also submitted its response.
The federal government has raised objections to the bench, pleading three of the judges – Justice Bandial, Justice Ahsan and Justice Munib – should not hear the case. It has demanded a new bench to hear the case.
The federal government seemingly banked on the principle of conflict of interest, as it gave the reason that one of the audio leaks concerned Chief Justice Bandial‘s mother-of-law while the matter also involved Justice Ahsan and Justice Akhtar.
According to the application, previous court decisions and the judges’ code of conduct make it clear that no judge can hear a case involving his relative. In the past, the then chief justice Iftikhar Muhammad Chaudhry had recused himself from the bench hearing Arsalan Iftikhar case.
Justice Isa-led audio leak commission objects to SC bench
The inquiry commission formed by the federal government to probe audio leaks has raised objections to the constitution and composition of the Chief Justice of Pakistan Umar Ata Bandial-led bench hearing a plea against it.
The commission said it would not be appropriate for the bench to hear these petition as one of the audio recordings allegedly pertains to the mother-in-law of the chief justice. “Hon’ble Mr. Justice Munib Akhtar may also be mentioned in the said recording. An. It another audio recordings reference is made to case fixation before a particular bench headed by Hon’ble Mr Justice Ijaz ul Ahsan,” reads the reply.
Citing the recently approved “The Supreme Court (Practice and Procedure) Act, 2023, it said the bench could not hear the case as the Committee, comprising the CJP and two most senior judges, had not determined which bench should hear the petition.
“The Supreme Court Rules, 1980 (the Rules') require that notices, prior to filing of any petition, must be sent by the petitioner/petitioner's counsel to the respondents informing about the filing of the petitions, but this was not done. The Rules also require submission of an affidavit of service confirming service of notice on the respondents, and though such an affidavit was filed, service was not affected. Till date the Commission has not received copies of the petitions, therefore, the Commission reserves its right to attend to the same when and if the same are provided,”.
The inquiry commission further said the petitions had been filed under Article 184(3) of the Constitution but the “order of the Supreme Court dated 26 May 2023 does not mention this provision, let alone that the petitions were maintainable thereunder”.
A petition under Article 184(3) can only be filed provided 'a question of public importance with reference to the enforcement of any of the Fundamental Rights' is involved, the commission said, adding that how Mr Zuberi could represent the public interest when he was “one of the persons allegedly talking in the audio recordings”.
Concluding his reply, the commission said it has “no interest in the matter other than to undertake the assignment given to it and to do so strictly in accordance with the Constitution and the law. The Commission also assures that legal objections and concerns raised before it will be considered”.
SC Halts Operations of Justice Isa-led Commission
Last week, the Supreme Court had halted the operations of the audio leaks commission following the order issued on the petitions filed by Imran Khan and others. The judgement, relying heavily on the principle of separation of powers, stated, "In as much as the Federal Government appeared to have acted unilaterally in this matter, a constitutional principle of the highest importance had been, prima facie, breached".
"In the circumstances, till the next date of hearing, the operation of the impugned notification ... issued by the Federal Government is suspended as is the order made by the Commission and in consequence thereof proceedings of the Commission are stayed," the judgment read.
Justice Isa Stopped Proceedings
A day later, the commission – headed by Supreme Court Justice Faez Isa and comprising Balochistan High Court Chief Justice Naeem Akhtar Afghan and Islamabad High Court Chief Justice Aamer Farooq – stopped further proceedings. However, Justice Isa remarked they had been barred from moving ahead with the process without even issuing a notice to them.
Earlier, the federal government had formed a three-member commission to investigate the leaked audios allegedly involving the judiciary and former chief justices and a judge, saying the conversations had raised apprehensions over impartiality of judges.
