'Attack On Independence Of Judiciary': SC Dismisses Objections Of PDM On Audio Leaks

Petitions filed by PTI Chairman Imran Khan, SCBA President upheld

'Attack On Independence Of Judiciary': SC Dismisses Objections Of PDM On Audio Leaks

The Supreme Court on Friday rejected objections raised by the former Pakistan Democratic Movement (PDM) government on a bench hearing pleas against the three-judge commission which the government had set up to probe audio leaks of politicians and some judges.

On Friday, Justice Ijazul Ahsan of the five-member bench read out a short order in the case dismissing objections raised by the then government on the petitions filed by the Supreme Court Bar Association (SCBA) President Abid Shahid Zuberi, SCBA Secretary Muqtedir Akhtar Shabbir, Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan and Advocate Riaz Hanif.

He noted that the objections were an "attack on independence of judiciary".

Detailed verdict

Later in the day, the detailed 32-page verdict penned by the head of the bench, Chief Justice of Pakistan Umar Ata Bandial was released.

In the verdict, CJP Bandial noted that the federal government's request for the chief justice's recusal was on the grounds of conflict of interest rather than bias. The verdict went on to make clear the distinction between bias and conflict of interest.

He refered to the definition of personal interest contained in Halsbury's Laws of England to be only pecuniary (financial) or if the "adjudicator's decision will lead to the promotion of a cause in which he is involved together with one of the parties."

CJP Bandial added that the Attorney General failed to specify, let alone elaborate what cause, if any, the CJ or his relative that may be affected by the petitons and that this renders "the allegations of the federal government against the CJ fanciful."

He continued that the relative of the chief justice is neither a party in these petitions nor is she claimed to be involved in the controversy under adjudication before the court.

"It appears that an illusory claim of conflict of interest has been alleged against the CJ by the Federal Government to prima facie postpone a decision in the instant Constitution Petitions," the verdict read. At this point it is important to note that the last hearing of this case was held at the end of May and that the decision was announced over three months later by the court just days before the retirement of the chief justice.

The CJP later defended his inclusion in the bench by stating that these petitions "pertain only to the determination of constitutional questions of public importance." He added that to even assume a personal interest of the CJ in the petitions a cause promoted by him or a benefit or liability accruing to him would need to be positively identified in the subject matter of the petitions.

The judgement went on to 'reflect' on the inimical treatment of the court and some of its judges by the federal government. 

"The federal government and/or federal ministers have 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 verdict read.

The court added that the apparent purpose of the federal government in seeking the recusal of the two learned Judges through an ill-conceived objection was to disrupt or otherwise delay the proceedings in the Speakers Petition.

CJP Bandial also took the opportunity to address the 4:3 and 3:2 verdict controversy. He accepted that the bench was split and there was disorderly conduct. He added that the bench was reconstituted as a five-member bench after mutual agreement among the original nine. This new bench, he maintained, issued a split decision of 3:2 and that ti was the government which deemed it a decision of 4:3 after taking into consideration the separate notes.

The top judge of the country noted that the resistance of the federal government and its coalition parties to our proceedings and judgments has also expanded to hurling threats and making scathing attacks against certain Judges of the Court ever since the audio recordings were leaked.

CJP Bandial also referred to an "extreme example" of a personal attack on judges, pointing to the "aggressive demonstration' staged by Pakistan Democratic Movement (PDM) President and Jamiat Ulema-e-Islam Fazl (JUI-F) Chief Maulana Fazlur Rehman's party outside the gates of the Supreme Court even as it heard a review petition filed by the ECP against decision to hold polls in May.

The top judge said that the protesters threatened him of "serious consequences".

"The disturbing aspect of the said demonstration was the assistance given by the Federal Government to its coalition parties to gather and protest against the Court in the Red Zone area of Islamabad where such protests are strictly prohibited," he said, adding that the government machinery facilitated the entry of the "horde" of protesters and remained a silent spectator to their slander.

'The power show assisted by the federal government was a direct attack on the independence of the Judiciary," CJP Bandial stated and told the federal government that the court faced all such actions with tolerance, forbearance and restraint.

The verdict declared the recusal application of the federal government to be devoid of "merit and legal force". Further it said that the application lacks good faith and aims to harass a member of hte bench without cause to avoid adjudication on constitutional failings. 

"The recusal application suffers from the common defect of being motivated and hence constitutes an attack on the independence of the Judiciary."

The petitions had urged the top court to declare as illegal the three-judge commission set up by the government in May, under senior puisne judge Justice Qazi Faez Isa and comprising Balochistan High Court Chief Justice Naeem Akhtar Afghan and Islamabad High Court Chief Justice Aamer Farooq.

While hearing the petitions against the commission, the five-member bench of the Supreme Court, led by Chief Justice Umar Ata Bandial, Justice Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed, had stopped the commission from working.

The government had objected to the composition of the bench, stating that since Justice Bandial and Justice Akhtar were impacted by the leaks, they should not be part of the bench.