Audio Leaks Commission Terms CJP Bandial-led SC Bench 'Not Appropriate'

Audio Leaks Commission Terms CJP Bandial-led SC Bench 'Not Appropriate'
ISLAMABAD: The judicial commission set up to investigate audio leaks raised objections over the CJP setting up a larger five-member bench to hear petitions against the formation of the commission. The commission, headed by senior puisne judge of the Supreme Court (SC), Justice Qazi Faez Isa, maintained that it was "not appropriate" for the bench to hear the petitions.

On May 20, the government formed a judicial commission - led by Justice Isa and comprising Balochistan high court (BHC) chief justice Naeem Akhtar Afghan along with Islamabad high court (IHC) chief justice Aamer Farooq - to probe into the veracity and authenticity of some audio conversations which were recorded without the knowledge of the speakers, and thereafter leaked to the public. These audio leaks pertain to serving and former members of the judiciary, and have unfortunately blemished the integrity and credibility of Pakistan's judiciary.

The federal government had formed the judicial commission under Section 3 of the Pakistan Commission of Inquiry Act 2017.

A number of petitioners, including former prime minister Imran Khan, challenged the formation of the judicial commission. Entertaining such petitions, a five-judge larger bench of the Supreme Court - headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, and comprising Justices Ijaz-ul-Ahsan, Munib Akhtar, Hasan Azhar Rizvi and Shahid Waheed - suspended the government's notification authorising the commissions’s proceedings. At this, the judicial commission led by Justice Qazi Faez Isa has put its proceedings 'on hold' while the SC heard petitions challenging its formation.

However, in a concise statement responding to a petition, the judicial commission maintained that “it would not be appropriate for this bench to hear these petitions”.

“The oath taken by the Chief Justices and Judges of the Supreme Court and High Courts require them to act, ‘in accordance with the Constitution of the Islamic Republic of Pakistan and the law’,” it detailed. The commission's statement said that the judges were required to “abide by the code of conduct" issued by the Supreme Judicial Council and the relevant judicial bodies, and to particularly not allow their “personal interest to influence their ‘official conduct’ or ‘official decisions’”.

Quoting the judicial code of conduct, the commission's statement read that a judge “must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends”. Moreover, “a Judge must refuse to deal with any case in which he has a connection with one party or its lawyer more than the other, or even with both parties and their lawyers”.

“To ensure that justice is not only done, but is also seen to be done, a Judge must avoid all possibility of his opinion or action in any case being swayed by any consideration of personal advantage, either direct or indirect,” the statement said.

The judicial commission’s concise statement said that one of the audio recordings “allegedly pertains to the mother-in-law of the Hon’ble Chief Justice”, while Justice Munib Akhtar “may also be mentioned in the said recording”. It further said that “in another audio recording reference is made to case fixation before a particular bench” headed by Justice Ijaz-ul-Ahsan.

The statement also argued that “members of the Commission are bound to act in accordance with the law”, adding that the Constitution, law and the code of conduct must also be observed by the members of the commission. “The law includes the Act, which grants to the Federal Government the power, under Section 3(2), to constitute inquiry commission” and that the act did not “stipulate that the Government must consult with the Chief Justice of Pakistan before it constitutes a commission”.

Section 3(2) was quoted in the commission's statement as “the Federal Government shall, by Notification in the official gazette, appoint the members of the Commission and where more than one member are so appointed, the Federal Government shall designate one of the members to be the Chairman of the Commission”.

The commission's statement maintained that the Act did not grant power to the CJP to nominate members of a commission. “Merely because the Government may elect to consult the Chief Justice does not mean that it has to. The Act has existed for over six years and, to the best of the knowledge of the undersigned, no challenge to it or specifically to its section 3(2) has been made, let alone the same having been struck down,” it read.

It may be recalled that the government has also submitted a petition before the apex court, urging that the five-member SC bench be reconstituted, as some of the judges on that bench are themselves 'party to' if not affected by the matter of audio conversations recorded and then leaked to the public.

The federal government had also sought the recusal of CJP Bandial, Justice Ijaz-ul-Ahsan and Justice Munib Akhtar from the bench hearing petitions against the constitution of the inquiry commission probing the audio leaks. The government asked CJP Bandial, Justice Ahsan and Justice Akhtar to distance themselves from the bench since the “rules of natural justice” demanded that the “adjudicator should be impartial”.

However, the SC's registrar objected to the government's request, stating that objections regarding a bench are raised before the bench itself and not the SC registrar's office. Adjourning the hearing to the next week, the CJP said that he would hear the objections raised by the federal government regarding the top court bench next week, and assured that he would hear the government first.