ISLAMABAD. On a government appeal challenging the makeup of the bench hearing arguments against the creation of the inquiry committee established by the federal government to look into audio leaks, the Supreme Court on Tuesday deferred its decision.
After hearing arguments from Attorney General for Pakistan (AGP) Mansoor Usman Awan and petitioners, including the Supreme Court Bar Association, a five-member bench led by Chief Justice Umar Ata Bandial and made up of Justices Ijazul Ahsan, Munib Akhtar, Shahid Waheed, and Hasan Azhar Rizvi reserved the decision. The petitioners have urged with the top court to declare the commission’s constitution invalid.
The CJP said at the last hearing that the bench will first hear the government’s concerns over the bench’s three members, Justices Bandial, Ahsan, and Munib. To hear the case, the administration wanted a fresh bench.
Given that one of the audio leaks featured Chief Justice Bandial’s mother-in-law while the case also involved Justice Ahsan and Justice Akhtar, it seems that the federal government bet on the idea of conflict of interest.
The application asserts that no judge may consider a matter involving a relative because of prior court rulings and the judges’ rule of conduct. When hearing the case of Arsalan Iftikhar in the past, former Chief Justice Iftikhar Muhammad Chaudhry had removed himself from the bench.
The hearing today
The CJP said at the beginning of the hearing that the judge could not in any way become a party.
Hanif Rahi Advocate, one of the petitioners, informed the bench that his contempt of court case had not been given a diary number. The chief judge said, “The matter of contempt is between court and contumnor.” He said that a judge cannot be made a party in a claim of contempt of court, and he also requested that Mr. Rahi withdraw any objections made to his petition.
Usman Manoor Awan, Pakistan’s attorney general, then stood at the podium and read the government’s objection to the bench’s makeup. Additionally, he read aloud the Supreme Court’s ruling about the prior hearing.
After that, the CJP said, “On which point would you like to talk?” The chief judge of Pakistan is a constitutional office, and no one could take command of it or utilise it based on presumptions, he said to the AGP, adding that he was forgetting one thing.
He said that despite being available, the chief judge was unaware of the inquiry commission’s formation and asked the AGP to support his claim.
The AGP said that he will first provide justifications for the bench’s structure. “Are you coming to this point that three of the judges are controversial?” the CJP questioned.
“If you reach that conclusion, you must explain how it was determined that the three judges are at odds with the case. I’d want to urge you to concentrate on the vital things,” he said.
The independence of the judiciary, according to the chief justice, is a crucial concern. The AGP responded by reading out the commission’s terms of reference and added that one of the alleged audios concerned the CJP’s mother-in-law.
Is your current argument that the audios are clearly authentic? Justice Akhtar raised a query. In response, Mr. Awan said that the government had recently established a committee to gather information.
Justice Akhtar said that although the administration has yet to confirm the veracity of the audios, a senior member of the cabinet had held a news conference. He questioned if it was appropriate to object to the bench when the veracity of the audios was unclear.
The press conference was held for what reason? Justice Akhtar inquired, adding that the minister need to apologise for making claims without first confirming the veracity of the audios.
The AGP said that a minister’s comments may be interpreted as representing the government’s position. Later, he claimed to be unaware of such a news conference.
Has the government utilised its resources to discover where these recordings are being made? the chief justice questioned at one point.
He questioned if the government had sought to track down those responsible for these recordings, saying, “The question is this who has planted this audios.” No judge, he said, could be persuaded to resign from his position by making accusations against him.
According to AGP, the inquiry panel would be used by the government to investigate this issue.
The Supreme Court Bar Association’s attorney, Shoaib Shaheen, began delivering his arguments after the AGP finished his. He said that after the Supreme Court took suo motu notice of the delay in the Punjab polls, audio leaks began to circulate.
He said that on February 16, just before the supreme court was to have its first hearing in the case, three audios were released. On February 17, further audios surfaced, and they continue to do so now, he said.
According to Mr. Shaheen, the commission’s TORs did not address the question of who was making these audio recordings. He emphasised that a hacker had disclosed every audio file.
The SC bench is opposed by the Justice Isa-led audio leak panel.
The investigation panel established by the federal government to look into audio leaks has also objected to the makeup and composition of the bench being heard an appeal against it, which is being chaired by Chief Justice of Pakistan Umar Ata Bandial.
The commission said that since one of the audio recordings purportedly concerns the mother-in-law of the chief justice, it would not be suitable for the bench to consider these petitions. There may be reference of Honourable Mr. Justice Munib Akhtar in the tape. An other audio recording has a reference to a matter being fixed before a certain bench presided over by Hon. Mr. Justice Ijaz ul Ahsan, according to the response.
According to the newly enacted “The Supreme Court (Practise and Procedure) Act, 2023,” the Committee, made up of the CJP and the two most senior justices, had not decided which bench should hear the petition, hence the bench was unable to hear the matter.
The Supreme Court Rules of 1980 (the Rules) provide that petitioners and petitioners’ counsel must notify respondents of the filing of petitions prior to filing any petitions, however this was not done. The Rules also call for the production of an affidavit of service attesting to the respondents’ receipt of the notice. Despite the filing of this document, service did not change. Since the Commission has not yet received copies of the petitions, it retains the right to deal with them when and if they are submitted.
The probe committee said that although Article 184(3) of the Constitution, which the petitions were submitted under, is not mentioned in the Supreme Court ruling from May 26, 2023, nor is it implied that the applications were maintainable under that provision.
The commission stated that in order to file a petition under Article 184(3), it must involve “a question of public importance with reference to the enforcement of any of the Fundamental Rights,” and further stated that it was unclear how Mr. Zuberi could represent the public interest given that he was “one of the persons allegedly talking in the audio recordings.”
The commission concluded his response by stating that its only interest in the situation is to complete the task entrusted to it and to do so completely in compliance with the law and the Constitution. The Commission also guarantees that it will take into account any legal objections and concerns.
SC halts justice operations Commission headed by Isa
Following the ruling on the petitions submitted by Imran Khan and others last month, the top court ordered the audio leaks commission’s proceedings to cease. The ruling, which placed a strong emphasis on the separation of powers, said that “a constitutional principle of the utmost importance had, prima facie, been breached” in light of the Federal Government’s apparent use of unilateral action in this case.
Accordingly, “the operation of the impugned notification… issued by the Federal Government is suspended until the next date of hearing, as is the order made by the Commission, and as a result, proceedings of the Commission are stayed,” the judgement said.
Justice Isa halted the case
The panel, which was presided over by Supreme Court Justice Faez Isa and included Chief Justices of the Balochistan High Court and the Islamabad High Court, ceased further action in accordance with the court’s directions. Justice Isa commented that they had been prevented from continuing the procedure without even receiving a notification from them.
The federal government had earlier established a three-member panel to look into the leaked audios that were said to include the judiciary, previous chief justices, and a judge. The administration claimed that the talks had raised concerns about the impartiality of judges.