Hearing against audio leaks commission: SC reserves verdict on plea for judges’ recusal

ISLAMABAD: Justice Munib Akhtar questioned the government’s decision on Tuesday to object to the constitution of the bench hearing petitions filed against the formation of a judicial inquiry commission probing the audio leaks asking whether the government had accepted them as authentic already.

A five-member bench of the Supreme Court (SC) reserved its verdict over the government’s application seeking the recusal of three of the judges presiding over the hearing.

The larger bench was hearing petitions challenging a judicial inquiry commission probing into the audio leaks allegedly involving current and former members of the superior judiciary and their family members.

In addition to Chief Justice of Pakistan Umar Ata Bandial, the bench includes Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.

On May 20, the federal government had formed the judicial commission to probe into over half-a-dozen leaked audio clips allegedly involving some current and former members of the superior judiciary and their family members to determine their “veracity” and “impact on the independence of the judiciary”.

The three-man judicial commission is led by SC senior puisne judge Justice Qazi Faez Isa and comprises Balochistan High Court Chief Justice Naeem Akhtar Afghan and Islamabad High Court Chief Justice Aamer Farooq.

As controversy surrounded the five-member bench hearing petitions against the commission, the government had sought the recusal of Chief Justice of Pakistan Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar from the bench.

Last week, the judicial commission probing into these leaked audio clips had also raised objections to the composition of the SC bench hearing pleas against the commission.

“One of the audio clips allegedly pertains to the mother-in-law of the honourable chief justice [of Pakistan]. Honourable Mr Justice Munib Akhtar may also be mentioned in the said recording.

“And in another audio recording reference is made to case fixation before a particular bench headed by honorable Mr Justice Ijazul Ahsan,” said a concise statement submitted by the commission’s secretary Hafeezullah Khajjak to the SC.

Today’s proceedings

During the proceedings today, Attorney General of Pakistan (AGP) Mansoor Usman Awan stated the government’s objections to the five-member bench before reading out loud the orders issued by the apex court after previous proceedings.

“What is the point you are trying to make?” asked the CJP, “you are missing one important thing that Chief Justice of Pakistan is a constitutional post.“

CJ Bandial went on to express his dismay over the government’s decision to form the commission without informing him.

“No one can assume the charge of CJP on the basis of an assumption. In this case, the chief justice was available but wasn’t informed about the formation of the

commission,” he remarked, telling the AGP to present his argument on these points.

The CJ went on to tell AGP Awan to understand the law before reading out legal references.

AGP Awan insisted he wished to present his arguments against the constitution of the bench, but CJ Bandial dismissed him saying that if he wanted to point out that three of the judges were “controversial” then he “will have to explain the basis of the assumption of the conflict”.

“I would prefer for you to focus on other more important issues,” the CJ said, adding that he was concerned more about how the matter was connected to the “independence of the judiciary.”

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 could be the objective of maligning judges through these audio leaks.

Reading out the audio leaks commission’s terms of reference (TORs), the AGP pointed out that “one of the leaked audios is related to the CJ’s mother-in-law.”

He clarified that he is seeking recusal on account of a conflict of interest.

“Is it your case at this point that the audios are prima facie authentic?” questioned Justice Akhtar.

However, Awan defended the government’s decision to form the commission saying its only purpose was to determine the authenticity of the leaks.

“Is the federal government not aware whether the audio leaks are authentic or not?” Justice Akhtar asked. “Senior cabinet members even held press conferences on the leaks … is it not true that the interior minister held a press conference? Some audios were even played in the press conference,” the judge noted.

“Is it lawful for someone, who doesn’t know about the truth of the audio leaks, to raise objections to the bench?”

“I don’t know if anyone held a press conference,” said the Attorney General.

However, the court maintained that the government should have displayed “collective responsibility”.

Justice Akhtar noted that there would be serious repercussions if a precedent was set whereby a judge would be removed from a case based on an alleged audio leak stressing that recusal required legal reasons.

“Tomorrow every litigant will air certain audio of a judge on social media and later he might seek his recusal on that ground,” he said, “this option is not available for anyone to come and say that this judge can’t hear this case.”

Awan maintained on the contrary that this was the precise reason for the constitution of the commission so that the authenticity of the audio could be determined.

CJ Bandial went on to ask who “planted these audio leaks on social media” as the government has the resources to find out the persons who are recording.

The AGP responded saying that the commission had been tasked with exploring these questions.

“How were the calls recorded and all such queries will be reviewed by the commission,” he explained adding that the probe was “still in initial stages”.

Meanwhile, Shoaib Shaheen counsel for SCBA President Abid Zuberi contended that audio leaks surfaced after the February 16 order wherein a division bench of the apex court had requested CJP to invoke suo motu jurisdiction regarding the delay in elections of Punjab and Khyber-Pakhtunkhwa assemblies.

The larger bench then went on to reserve its decision on the federal government’s plea about the recusal of three judges including CJP Bandial.


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