SC reserves verdict on govt petition against bench hearing audio leak commission case

SC reserves verdict on govt petition against bench hearing audio leak commission case


The federal govt and commission raised objections to CJP Bandial-led bench during previous hearing

ISLAMABAD (Dunya News) – The Supreme Court on Tuesday reserved its verdict on a government petition against the composition of the bench hearing pleas against constitution of the inquiry commission formed by the federal government to probe audio leaks. 

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 reserved the verdict after hearing arguments from Attorney General for Pakistan (AGP) Mansoor Usman Awan and petitioners, including Supreme Court Bar Association. The petitioners have pleaded the apex court to declare the constitution of the commission null and void.

During the previous hearing, the CJP said the bench would first hear the government’s objections regarding the three members of the bench – Justice Bandial, Justice Ahsan and Justice Munib. The government demanded a new bench to hear the case.

The federal government seemingly banked on the principle of conflict of interest, as it had given 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.

Today's Hearing

At the outset of hearing, the CJP remarked the judge could not become a party in any way.

A petitioner, Hanif Rahi Advocate, told the bench that no diary number had been allotted to his contempt of court petition. At which, the top judge replied: “The contempt matter lies between court and contemnor”. He further asked Mr Rahi to remove objections raised to his petition, adding that a judge cannot be made a party in a plea regarding contempt of court.

Later, Attorney General for Pakistan Usman Manoor Awan took to rostrum and read the objection raised by the government regarding the composition of the bench. He also read out the order issued by the apex court regarding previous hearing.

The CJP then inquired, “On which point you would like to talk”. He told the AGP that he was missing one thing, adding: “the chief justice of Pakistan is a constitutional position and no one could take its charge or use it on the basis of assumptions”.

He said the chief justice was not informed about the constitution of the inquiry commission despite his availability, asking the AGP to give arguments on this point.

The AGP said he would first submit arguments regarding the constitution of the bench. At which, the CJP said: “Are you coming to this point that three of the judges are controversial?”

“If you come to it, you have to tell how it was assumed that the three judges are in conflict to the case. I would ask you to focus on important issues,” he remarked.

The chief justice said, “Independence of judiciary is an important issue”. In reply, the AGP read out the TORs of the commission, adding that one of the purported audios related to the mother-in-law of the CJP. 

“Is your case at this time is that the audios are prima facie authentic?” Justice Akhtar questioned. To which, Mr Awan said the government had just formed a commission to find the facts.

Justice Akhtar said a senior member of the cabinet made a press conference on the audios while the government was yet to determine their authenticity. He said if it was correct to raise objection to the bench when the reality of the audios was elusive.

Why had the interior minister held the presser? Justice Akhtar questioned, adding that the minister should resging for making statements without verifying the authenticity of the audios.

At which, the AGP said the statement of a minister could be taken as a viewpoint of the government. He later said he was not aware of such press conference.

At one point, the chief justice asked: “Has the government used its resources to unearth where these recordings are being made?”.

“The question is this who has planted this audios,” he said while asking if the government has tried to trach the elements behind these recordings. He remarked no judge could be asked to disassociate himself from the bench by levelling allegations against him.

AGP said the government will look into this matter through the inquiry commission.

After the AGP wrapped up his argument, the Supreme Court Bar Association’s lawyer, Shoaib Shaheen, started presenting his arguments. He said the audio leaks started leaking after the top court took suo motu notice regarding delay in Punjab elections.

He said three audios were leaked on Feb 16 when the apex court was set to hold the first hearing the case for hearing. Further audios emerged on Feb 17 and it is continued till today, he said.

Mr Shaheen said the TORs of the commission did not cover the angle that who was recording these audios. He pointed out that all audios were leaked by a hacker.

Justice Isa-led audio leak commission objects to SC bench 

The inquiry commission formed by the federal government to probe audio leaks has also 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 month, the top 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

Following the court orders, 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.