KARACHI: Legal experts say that the decision of the Supreme Court to reject the previous PDM-led government’s objection against the five-member bench hearing the alleged audio leaks has to be seen in the wider context of bench formation and the code of conduct for recusal from a bench, though they add that the real issue should have been that there were taped recordings to begin with.
According to high court advocate Abuzar Salman Khan Niazi, “As far as the CJ is concerned, since one of the leaks was apparently featuring his mother-in-law, in my view he should not have been on the bench. The rest of the judges could have been on the bench”. Niazi, however, says that law and precedent leave it to the judge to decide this matter: “In a previous judgment by Justice Jawwad S Khawaja, he had said that at the end of the day it is up to the judge to decide whether he or she will be influenced or not. That decision is not untenable legally. The same principle has been followed here.”
Supreme Court advocate Basil Nabi Malik explains how the code of conduct works here: “Generally, as per the Code of Conduct, a judge should recuse himself where his interest or that of a near relative is involved. But interestingly, the provision gives leeway to the judge to determine who in fact he considers to be a ‘near relative’. The logic behind this is perhaps self-evident. A judge is to recuse himself in the interest of justice, not in subversion of it. And it is not supposed to be the prerogative of anyone outside the judiciary to compel such recusal. Because compelling a judge to recuse himself would in fact be an interference in judicial functions, and by extension, an interference in the independence of the judiciary.”
On whether this would constitute an ‘attack on the judiciary’, Malik says “No, because the decision to recuse or not remained with the judiciary, and in any case, a mere request for recusal by a party certainly would not be tantamount to compulsion”.
Niazi agrees and also calls this an “interference in the working of the judiciary”. He does however say that while a “simple objection over bench formation is not an attack on the judiciary, if you’re following that up with propaganda or making the judges controversial etc then that is an attack. Also, if you’re making a commission without taking the CJ into confidence or taking permission from him, you can’t just issue a notification saying this is a commission with this and this judge on it. In that sense, I think that would amount to interference in the working of the judiciary, violating the principle of separation of powers. If you widen the definition of an attack on the judiciary, it would fall under that. At best, however, I would say interference in the working of the judiciary but not an attack on the judiciary. But this is how the court has interpreted it.”
Lawyer Abdul Moiz Jaferii says that he has “no doubt that the entire audio leaks issue was the government trying to pressure the judiciary....The way the TORs for the commission were framed were similarly malicious. And it was clear that the government is trying to throw a gun into what is already a knife fight.” He adds that announcing Friday’s decision “which lost its relevance and timeliness many months ago, after the offending government is over with, is a rather benign protest.”
Constitutional lawyer Aaminah Qadir weighs in on the debate: “If there is a real reason for a judge to not be on a bench because there is a conflict there of any kind, I think it is fair to raise an objection to that but it depends on the reason why you’re raising that objection. I don’t think that objections regarding bench constitution can be an attack on the judiciary because situations do arise that require a bench to be reconstituted. However, in the current climate, it has just become a cat and mouse kind of tale [between two camps].”
For Barrister Ali Tahir, an objection being seen as an attack on the Supreme Court would not be an argument that would be appreciated “especially in light of the constitutional guarantee of freedom of speech”. But he adds a caveat here: “as the Supreme Court has made clear in its verdict, it is the holistic conduct of the then federal government which seems to be a well-orchestrated attack to influence proceedings of the Supreme Court. It is my belief that in the face of all this the Supreme Court has still shown restraint, and that in fact the holistic conduct of the PDM was an attack on the independence of the judiciary.”
Malik asks if the decision not to recuse was correctly taken. His answer is in the affirmative: “If judges started recusing themselves on the basis of some relative allegedly airing their preferences for one or another political leader, I suspect most if not all judges would have to recuse themselves from pretty much all political cases. This would just be unsustainable. In relation to this aspect, the Supreme Court appears to have decided correctly.”
Qadir also points to a larger issue: “The overarching problem of tapping people’s phones is illegal in the first place. The bigger problem is why are these tappings taking place?” She is echoed in this by both Jaferii and Niazi. Per Niazi, “what is being ignored in all this are the [alleged] tapes. The TORs made for the commission that was supposed to investigate the said tapes did not include a question over who made the recordings and who released them. This involves our right to privacy which is a fundamental right under Article 14 of the constitution. Had the government been serious, it should have first investigated the origin of the tapes.” Jaferii too says that the court “should first investigate who tapes judges and then surreptitiously uses those recordings.”
Coming back to Friday’s decision, Malik adds that “Unfortunately, in light of the consistent allegations of bias and prejudice made by various parties for some time now, some of the questionable decisions made over time, and the problems arising within the Supreme Court itself, this decision, even if correct, may be regarded largely as controversial. The solution to such a dilemma was always going to be in a full court hearing, or the constitution of a bench which is not considered a ‘like-minded’ bench.” Aaminah Qadir adds that “there has become such an unsavoury divide in the Supreme Court that there is a certain bench that comprises certain judges that repeatedly have sat on a majority of cases and this has been met with a lot of objections because in the interest of transparency most legal commentator and prominent lawyers have suggested that full benches be formed.”
On the matter of the commission formed by the government, Barrister Tahir is of the view that “If the government was serious in inquiring about the leaks, the matter should have been sent to the Supreme Judicial Council.”
