Justice Qazi Faez Isa-led commission objects to Supreme Court five-member larger bench hearing audio leaks case

ISLAMABAD, May 31 (SABAH): After the federal government, the judicial commission formed to probe the audio leaks related to the judiciary also raised objections to the Supreme Court of Pakistan five-member larger bench hearing the pleas challenging the high-powered body.

“It would not be appropriate for this bench to hear these petitions,” read a reply submitted by the judicial commission ahead of the hearing on Wednesday.

The five-member Supreme Court (SC) bench headed by Chief Justice of Pakistan Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed was hearing the pleas.

During the previous hearing, the court stayed the proceedings of the commission and suspended the federal government’s notification of the commission’s constitution.

When the hearing resumed on Wednesday, the court said that new petitions had been filed against the commission and that it would hear them next week. The hearing was then adjourned shortly after it started.

The federal government had, earlier this month, constituted a three-member judicial commission headed by SC’s Justice Qazi Faez Isa — under Section 3 of the Pakistan Commissions of the Inquiry Act, 2017 — to probe the veracity of recent audio leaks and their impact on the independence of the judiciary.

On Wednesday, Secretary to Commission Hafeezullah Khajjak submitted a response to the SC’s notice. In its response, the commission wondered why its proceedings had been stopped without any notice given to it regarding the matter and why it had not been heard before the stay order was issued.

“The proceedings of the Commission were stopped without hearing the Inquiry Commission,” the response stated.

Moreover, the commission’s response pointed out that no other member of the alleged audio leaks had filed a plea in the Supreme Court nor objected to the commission, adding that several people had confirmed they had no objection to the inquiry.

Addressing the court’s assertions that the commission was usurping the powers of the Supreme Judicial Council (SJC) since it was the role of the council to enquire into matters of the judiciary, the response stated that the commission had already clarified its position on Article 209 in the first session.

“It was clarified that the action of the Commission should not be considered as the action of the Supreme Judicial Council,” the response stated.

Furthermore, in the detailed 26-page long response, the commission raised questions on the appropriateness of the incumbent bench to hear the matter.

Taking the same line as the federal government in its petition yesterday, the commission said: “The oath taken by the Chief Justices and Judges of the Supreme Court and the High Courts require them to act, ‘in accordance with the Constitution of the Islamic Republic of Pakistan and the law’.

They are also required to, ‘abide by the code of conduct issued by the Supreme Judicial Council’ and not to allow their ‘personal interest to influence’ their ‘official conduct’ or ‘official decisions’.”

The response stated that a judge “must decline resolutely” to act in a case involving his own interest.”

Defending the commission, the response said that it had no personal interest in the inquiry and had been given this responsibility under the law.

“The commission will fulfill its responsibility according to the constitution and law,” it stated, further pledging that any objections raised by the parties concerned would be taken into account.

Moreover, the commission also objected to the procedure in which the 5-member bench was formed.

“The matter of bench formation was not placed before the Judges Committee,” the response said.

In light of these points, the commission asserted that it would be better if the 5-member bench postpones the hearing till the formation of the bench by the Judiciary Committee.

At the outset of Wednesday’s hearing, Advocate Riaz Hanif Rahi — who is also one of the petitioners in the case — said he wanted to file a contempt of court petition. “We have read in newspapers that other petitions have also been filed,” the CJP said. “We will include them in the case.”

Justice Bandial also said that the court would first hear Attorney General for Pakistan (AGP) Mansoor Usman Awan’s arguments against the five-judge bench. “No decision was taken on the objections to the bench at the previous hearing.”

He further stated that the court was directing the registrar to allot a number to the AGP’s plea and directed Awan to provide copies of his petition to all the respondents.

“The government’s petition includes some words that should not have been there,” the top judge remarked.

At one point during the hearing, Advocate Shoaib Shaheen — the lawyer for Supreme Court Bar Association (SCBA) President Abid Shahid Zuberi — came to rostrum and said that the association had always defended the apex court in talk shows.

“But the judicial commission in its order said that we speak against the judiciary during talk shows,” he said. “Justice Qazi Faez Isa also said that I appear in talk shows … but we only go to defend the court.

“Whatever is said outside the SC is in front of everyone,” he further stated and drew the court’s attention towards the “kind of things being said at your door”.

At that, Justice Bandial interjected. “We will listen to everything you say when you are presenting your arguments,” he said.

The top judge went on to say that the case would be taken up any day next week and adjourned the hearing.

The Registrar’s Office returned the federal government’s petition objecting to the involvement of CJP Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar in the five-member bench.

Citing “conflicts of interest”, the government had requested that they recuse themselves from the bench.

However, on Wednesday the registrar’s office returned the petitions and said: “Make the request in open court.”

The federal government, a day earlier, filed a plea against the three judges and requested that a new bench be formed to hear the petitions.

In the petition, the government requested that a new bench be formed to hear the petitions against the commission.

Last week, the Supreme Court had halted the operations of the audio leaks commission following the order issued on the petitions filed by Imran Khan and others. The judgment, 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.

A day later, the commission – headed by Supreme Court Justice Qazi 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.

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 unconstitutional rule.

Call between ex-CJP Nisar’s son Najam Saqib and his friend mentioning his father in a political role.