ISLAMABAD, Jun 06 (NNI): Chief Justice of Pakistan Justice Umar Ata Bandial has remarked that the CJP can neither be asked to withdraw from a bench nor his or any other’s judge’s powers can be trimmed by just levelling allegations while Justice Munib Akhtar questioned the government’s decision to object to the constitution of the SC bench, asking whether the government had accepted them as authentic already.
The CJP made the remarks as a five-judge bench of the Supreme Court resumed on Tuesday hearing of four pleas challenging the formation of a judicial commission led by Justice Qazi Faez Isa to probe audio leaks.
The bench is comprised of CJP Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.
The Supreme Court adjourned indefinitely the hearing of the petitions after lawyers completed their arguments about the objection to the formation of the bench.
As the hearing began, Attorney General for Pakistan (AGP) Mansoor Usman Awan made the first move as he took to the rostrum and read out loud the government’s objections to the five-judge bench hearing the case. He also read out the apex court’s order issued after the previous hearing.
CJP Bandial went on to express his dismay over the government’s decision to form the commission without informing him. Then, the CJP asked the AGP: “What point do you want to speak on? You are missing one thing.”
As the AGP stared at the chief judge, the CJP pointedly said the post of the chief justice was “constitutional”. “No one can assume the charge of chief justice on the basis of an assumption. The CJP appoints a caretaker CJP if he is not available. In this case, the chief justice was available but wasn’t informed about the formation of the commission,” Justice Bandial observed, adding “Present your arguments on these points,” he said and directed the AGP to understand the law before reading out previous judgments issued by the court.
Mansoor Awan said he wanted to first present arguments on the bench formation. The CJP intervened “If you raise the point that three of these judges are controversial then you will have to explain the basis on which you assumed that there is conflict among three of us?”
The CJP further remarked “I want you to focus on the more important issue instead of others,” he remarked, noting that another pressing matter was the freedom of judiciary.
AGP Awan insisted he wished to present his arguments against the constitution of the bench, but CJ Bandial dismissed him saying that if he wanted to point out that three of the judges were “controversial” then he “will have to explain the basis of the assumption of the conflict”.
The AGP while reading out the audio leaks commission’s terms of reference (TORs), said that “one of the leaked audios is related to the CJ’s mother-in-law.”
Justice Muniab Akhtar took exception to Sanaullah’s presser on audio leak allegedly featuring top judge’s family.
Justice Bandial asked if the government had exhausted its resources to trace those behind recording and leaking audios. “How and where are the audio leaks emerging from? Who is behind this?” the top judge put up a query.
“One of the audio leaks is related to the CJP’s mother-in-law,” the AGP pointed out. At that, Justice Munib Akhtar asked if the case being heard at the moment concerned the veracity of the audio leaks. The AGP responded that the government had only formed a commission at this point and its purpose was to determine the authenticity of the leaks.
“Is the federal government not aware of whether the audio leaks are authentic or not?” Justice Akhtar asked.
“Senior cabinet members even held press conferences on the leaks; is it not true that the interior minister held a press conference? “Some audios were even played in the press conference,” the judge noted. “Is it lawful for someone, who doesn’t know about the truth of the audio leaks, to raise objections to the bench?”
Justice Akhtar further stated that he was inquiring about the maintainability of the AGP’s appeal seeking the reconstitution of the bench. “Why did the interior minister hold the press conference? Can such carelessness be shown?” he went on to ask. “After such a statement, the minister should have been removed or resigned.”
For his part, Awan asked if a minister’s statement could be considered the government’s stance on the matter. “It is not in my knowledge if someone had held a press conference,” he said.
However, Justice Akhtar asserted that the federal cabinet should have shown “collective responsibility” on such an important issue. “A minister talking about tea is different, but here a statement was given on an important issue,” he said.
At that, the AGP asked the court to see if the interior minister’s statement was issued before May 19 or after. “Wow, what justice with the judiciary,” the CJP quipped. “First judges were ridiculed through the audios and then it is being said that these leaks will be investigated.”
Justice Akhtar also remarked, “This is an easy way to remove any judge from a bench … make an audio with their name.” He then contended that there legal reasons involved in judges recusing themselves from benches. “This option is not available for anyone to come and say that this judge can’t hear this case,” the judge remarked
At one point, the CJP inquired, “The question is who planted the audio leaks? Has the government tried to find out who is behind this?” Find out whether the Twitter handle is operated locally or from outside the country,” he said.
Awan replied that the government was looking into these questions through the commission. “How were the calls recorded and all such queries will be reviewed by the commission,” he said.
The AGP further maintained that the matter was in its initial stages currently, adding that as per the federal cabinet, the recordings were “alleged audios”. “Only this statement of the government should be seen,” he said, highlighting that apart from the cabinet, statements of any ministers should be seen in a personal capacity.
“If the defence minister gives a statement, should that not be seen as the government’s stance too?” Justice Akhtar asked. “If a matter turns out to be relevant to all the judges of the Supreme Court, then this theory can be applied as the doctrine of necessity,” the AGP replied.
At one point during the hearing, Justice Akhtar recalled that no objections were raised to the bench during the Benazir Bhutto case. “Phone calls of four out of seven judges hearing the case were tapped. Did the judges, whose calls were tapped, not take the right decision in that case?” he asked. Awan responded, “The government’s case is not on the bias, but the conflict of interest.”
Meanwhile, Justice Bandial asked if the government’s objection was only to the judiciary proceedings or also to the execution of the court’s administrative affairs.
The AGP argued that a person could not be a judge of their own cause, assuring the bench that the government did not have any ill-intention in the matter. “Changes in the bench will not affect the right of the petitioners who approached the court,” he added.
Awan subsequently requested the court to review the appeal regarding the reconstitution of the bench and concluded his arguments.
Presenting his arguments, SCBA lawyer Shoaib Shaheen said, “The audio leaks were considered to be true and it was said that the freedom of the judiciary was affected.” He argued the TORs of the commission did not mention those involved in tapping phone calls. “All the audios emerged after the suo motu of the Punjab elections,” the lawyer claimed. “Who recorded the audios? All the audios were brought forth through one hacker.”
“Where was Pemra (Pakistan Electronic Media Regulatory Authority) amid this? Conspiracies were hatched to divide the judiciary. “The judiciary’s freedom is very important … people are looking towards the courts,” he said.
As the SCBA lawyer concluded his arguments, AGP Awan came to the rostrum and said that the government’s plea regarding the reconstitution of the bench was not related to bias but the conflict of interest. He requested the court to overlook Shaheen’s arguments in this regard.
“We will think about it,” the CJP replied. He appreciated the arguments presented by Awan and Shaheen, saying that the court’s order restraining the audio leaks panel from going ahead with its task was still in place.
Subsequently, the hearing was adjourned indefinitely with Justice Bandial saying that the court would ponder upon its decision regarding the government’s plea. NNI
