• SC says govt’s objections tantamount to “attack on independence of judiciary”.
• Verdict announced on SCBA president’s plea requesting to declare commission’s formation illegal.
• Court reserved verdict on then government’s petition on June 6.

ISLAMABAD: The Supreme Court (SC) on Friday rejected the then-Pakistan Democratic Movement (PDM)-led government’s objection against the five-member bench led by Chief Justice of Pakistan (CJP) Umar Ata Bandial hearing the alleged audio leaks. 

The five-member larger bench of the apex court, headed by CJP Bandial and comprising Justice Ijazul Ahsen, Justice Munib Akhtar, Justice Syed Hassan Azhar Rizvi and Justice Shahid Waheed, was formed earlier in May this year to hear petitions against the then government’s move to form inquiry commission led by senior puisne Judge Qazi Faez Isa to probe audio leaks involving the supreme court judges. 

Subsequently, the then-PDM government filed a civil miscellaneous application (CMA) in the apex court requesting that CJP Bandial, Justice Ahsan and Justice Akhtar recuse themselves from the five-member larger bench hearing the instant matter.

The short verdict, announced by Justice Ahsan on Supreme Court Bar Association (SCBA) President Abid Shahid Zubairi’s petition requesting to declare the commission’s formation illegal, said that the objections raised by the previous government against judges were tantamount to an “attack on the independence of the judiciary”.

The apex court reserved the verdict on the then government’s petition on June 6.

On May 26, the larger bench suspended the operation of the government’s notification, constituting a Judicial Commission for probing the veracity of alleged audios and halted until May 31 the proceedings of the commission. 

“In the circumstances, till the next date of hearing, the operation of the impugned notification No.SRO.596(I)/2023 dated 19.05.2023 issued by the Federal Government is suspended as is the order dated 22.05.2023 made by the Commission and in consequence thereof proceedings of the Commission are stayed”, Chief Justice Umer Ata Bandial had announced in a short order. 

The government, in its CMA, said: “Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar should not listen to the audio leak case,” the petition appealed, adding that the “three respected judges should refuse to sit in the five-member larger bench.” 

The plea further added that the objection raised by the Attorney General for Pakistan (AGP) Mansoor Usman Awan against the chief justice’s presence in a hearing on May 25 was not accepted.

Citing the fact that one of the leaked audios before the inquiry commission related to the CJP’s family member, the federal government said that according to judicial decisions and the code of conduct, a judge cannot hear the actions of his relatives.

The petition further added that in the Arsalan Iftikhar case, the former chief justice Iftikhar Chaudhary recused himself from the bench.

Moreover, it added that the alleged audio leak is also related to Justice Ahsan and Justice Munib.

Punjab’s former chief justice Parvez Elahi’s audio mentions Justice Ahsan, while the audio between the two women mentioned Justice Munib, the application contended reasons for why these two judges should recuse themselves.

Judicial commission

A high-powered judicial commission comprising Justice Qazi Faez Isa along with Justice Naeem Akhtar Afghan and Justice Aamer Farooq was tasked on May 20 to probe the audio leaks related to the judiciary.

The commission was tasked to complete the inquiry within 30 days.

Among the multiple audio leaks, the commission will also probe into the veracity of the alleged call between former Punjab chief minister Chaudhry Parvez Elahi and a sitting top court judge as well as another call between CM Elahi and a Supreme Court lawyer over the constitution of an apex court bench.

Subsequently, Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan questioned the government for the “deliberate omission” of the terms of reference (TORs) and challenged the formation of the three-member judicial commission on audio leaks.

Babar Awan, the PTI chief’s lawyer and party leader, had filed the plea on his behalf requesting the court to declare the notification for constituting the commission null and void.

Similarly, Zubairi had also challenged the audio leaks commission to summon directing him to appear before the panel in connection with the inquiry.

Law Minister Azam Nazeer Tarar earlier said that the government did not consult CJP Bandial before forming the commission.

In light of these petitions, the Supreme Court stayed the proceedings of the commission and suspended the federal government’s notification of the commission’s constitution.

The order was issued by a five-member SC bench headed by Chief Justice Umar Ata Bandial and comprising Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.

Audio leaks to be probed

The commission was notified to investigate the following audio leaks:

• Call between former Punjab chief minister and an advocate about fixation of some cases before a particular SC bench.
• Call between former Punjab chief minister and a sitting apex court judge.
• Call between former chief justice of Pakistan Saqib Nisar and a senior lawyer.
• Call between a lawyer and a journalist on the outcome of a case before a particular SC bench.
• Call between former prime minister Khan and his party colleague about their links in the apex court.
• Call between mother-in-law of CJP Umar Ata Bandial and wife of a lawyer regarding SC cases and conversation about an un-constitutional rule.
• Call between ex-CJP Nisar’s son Najam Saqib and his friend mentioning his father in a political role.