ISLAMABAD: A day after the federal government raised objections over the five judges appointed by Chief Justice Umar Ata Bandial to hear the petitions against the high-powered judicial commission formed to probe the audio leaks related to the judiciary, the commission on Wednesday also expressed concerns regarding the bench.
"It would not be appropriate for this bench to hear these petitions," read a reply submitted by the judicial commission — headed by SC's Justice Qazi Faez Isa — ahead of the hearing.
The five-member Supreme Court (SC) bench constituted to hear the petitions is headed by Chief Justice Bandial and comprises Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi, and Justice Shahid Waheed.
The petitions — filed by 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 Rahi — requested the apex court to declare the commission's formation illegal.
During the previous hearing, the court stayed the proceedings of the commission and suspended the federal government's notification against the commission's constitution.
It had also issued notices to the government and the commission regarding the inquiry, objecting to the fact that the CJP had not been consulted regarding the formation of the inquiry.
At the outset of the hearing, CJP Bandial said that the court would include some new petitions filed in the case and would hear the attorney general for Pakistan's (AGP) plea first.
"Will hear the attorney general's arguments on the objections to the bench. A decision on the objections was not taken at the last hearing," the CJP said.
He further said that the arguments on the new pleas will be heard in the next week.
During the hearing, PTI's lawyer said that the federal government had accused the party of discussing the case on TV shows.
Addressing the accusations, the lawyer said that the party was simply "defending" the SC.
"Everyone saw what happened outside the gates of Supreme Court," Shaheen added while referring to the Jamiat Ulema-e-Islam Fazl (JUI-F) sit-in earlier this month.
At this, the top judge assured the lawyer of listening to all of their conncerns.
"The attorney general's petition has not been filed yet," CJP Bandial said, adding that the petition had not been alloted a registration number.
He then instructed the AGP to provide the copies of government's petition to all the parties concerned.
The hearing was adjourned till next week, shortly after the resumption of proceedings.
"[We] will hear the case someday in the next week," CJP Bandial said while adjourning the hearing.
Ahead of the hearing today, Secretary to Commission Hafeezullah Khajjak submitted a response to the Supreme Court’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 Supreme Court’s assertions that the commission was usurping the powers of the Supreme Judicial Council 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 fulfil 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.
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, today 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.
The federal government had over a week ago constituted a three-member judicial commission — 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.
The commission was notified to investigate the following audio leaks: