ISLAMABAD: Chief Justice Umar Ata Bandial on Monday said that the court has to protect the independence of the judiciary, adding that things will not work when secret meetings take place.
A three-member bench — headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprising Justice Ijaz Ul Ahsan and Justice Munib Akhtar — heard the review petition of the Election Commission of Pakistan (ECP) against its order setting date of May 14 for elections in Punjab.
The CJP took strong exception to the government for bypassing his office and constituting an inquiry commission for probing the veracity of alleged audio leaks.
“The manner in which you have constituted a Judicial Commission for probing the alleged audio leaks matter, it should not be by any secret means,” the chief justice told the attorney general (AG).
“I am the chief justice although it’s an accident of history, but it is; therefore, it will be better for you to accept this reality as early as you can,” the CJP told AG Mansoor Awan. At the start of hearing, the attorney general came to rostrum and informed thecourt that the government has enacted on Friday a new law Supreme Court (Review of Judgments and Orders) Act 2023 after the president signed it.
As per law, in case of judgments and orders of the Supreme Court in exercise if its original jurisdiction under Article 184 of the Constitution, the scope of review on both facts and law, shall be same as an appeal under Article 185 of the Constitution.
It further says that a review petition shall be heard by a bench larger than the bench which passed the original judgment or order. At this Justice Munib pointed out that after hearing about enactment of Supreme Court (Review of Judgments and Orders) Act 2023, the ECP lawyer is smiling.
Justice Bandial reminded the AG that the court has already stayed the Supreme Court (Practice and Procedure) Act 2023 that aimed at curtailing the powers of chief justice with regard to suo motu jurisdiction exercised under Article 184(3) of the Constitution as well as constitution of benches.
The CJP said that an eight-member larger bench of the apex court will take up the matter on June 1, 2023, therefore let’s hear this matter too as well. The chief justice observed that court enforce fundamental principles of independence of judiciary.
“The government while creating a new judicial jurisdiction had tried to interfere in our administrative affairs by enacting the law, clipping the powers of the chief justice’s office,” the CJP remarked.
He said that that everyone needed to think again as such aggressive attitude would not help and it should be avoided. But, he added, they are happy the current law is only about Article 184(3).
The CJP further said that by exercising original jurisdiction under Article 184(3) the court had issued appropriate order whenever question of public importance was raised for ensuring fundamental rights of the citizens. At the same time this court had also suggested some avenues in its decisions, taken with regard to Article 184(3) as well, the CJP remarked.
When the CJP asked if the other side (Pakistan Tehreek-e-Insaf) was aware of the latest legislation made with regard to review of judgements orders of the apex court, the AG submitted that Barrister Ali Zafar, counsel for the other side was on general adjournment.
The chief justice then said that the court will hear the matter in presence of other side. Meanwhile, turning to formation of judicial commission on audio leaks, the chief justice observed that the manner in which the government had constituted the commission, it should not have been by any secret means.
“You would have gone through our order passed on the matter and we have not abandoned the commission but halted its proceedings until May 31,” the CJP to AG. “You should play the role of a bridge and seek instructions from government,” the CJP told the AG, adding that there is an accident of history that there is one chief justice and you should accept this reality as early as you can.
Justice Bandial continued that an acting chief justice can exercise the powers of chief justice in his absence. “But don’t delegate the powers of chief justice to a judge, assigning the task of probing any matter, bypassing the chief justice,” the CJP told AG Mansoor Awan.
“I am the chief Justice and it’s an accident of history, but it is,” the CJP remarked and questioned as to why they (court) should the break the law. “Let explore that silver lining and everyone should play their constructive role in a responsible manner,” the CJP remarked.
The CJP said that the court had seen the notifications for the Memogate Commission, Abbottabad Commission and the commissions set up in the Shahzad Saleem murder case. He said that all the judicial commissions are constituted at the will of the chief justice. “If you want to investigate something, it should be done through proper procedures. I will not form a commission consisting myself,” he added.
The top judge also gave the option of investigations through another judge, saying that “this political temperature will not improve livelihood and law and order”. Later, the court adjourned the matter of review petition of ECP for date-in-office.
