ISLAMABAD: The Supreme Court (SC) on Friday rejected the previous PDM government’s objections to the five-member bench hearing a set of pleas challenging the constitution of a three-judge commission set up to probe veracity of audio leaks that had implicated politicians as well as judges of the top court and their family members.
Justice Ijazul Ahsan announced the short order, saying that the objections were “an attack on the independence of the judiciary”. The SC five-member larger bench had earlier reserved its decision on the government’s objections.
The previous coalition government had formed the commission on May 20 under Section 3 of the Pakistan Commission of Inquiry Act 2017. Led by senior puisne judge Justice Isa, the commission also comprised Balochistan High Court Chief Justice Naeem Akhtar Afghan and Islamabad High Court Chief Justice Aamer Farooq.
On May 26, the top court had restrained the panel from going ahead with its task. The verdict was issued by the five-member bench hearing the case.
The order was passed on a set of petitions moved by Supreme Court Bar Association (SCBA) President Abid Shahid Zuberi, SCBA Secretary Muqtedir Akhtar Shabbir, PTI Chairman Imran Khan and Advocate Riaz Hanif Rahi seeking to declare the constitution of the audio commission illegal.
Subsequently, the government-appointed commission decided to put its proceedings on hold until the SC decided the petitions.
However, the PDM government sought the reconstitution of the five-member bench — led by Chief Justice of Pakistan Umar Ata Bandial and comprising Justice Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed — hearing the pleas against the formation of the commission.
In its application, the PDM government had asked CJP 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 CJP 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 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 attorney general for Pakistan (AGP).
“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 CJP 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.
