AUDIO LEAKS COMMISSION.
ISLAMABAD - The Supreme Court of Pakistan Friday turned down the federal government’s application for the recusal of Chief Justice Umar Ata Bandial from a bench, which was hearing the petitions against the constitution of an inquiry commission to probe the alleged audio leaks.
A five-member bench of the apex court headed by Chief Justice of Pakistan Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed on June 6, 2023 had reserved its verdict on the federation’s application demanding recusal of CJP Bandial from the five-member bench.
The judgment said that the events leading up to the recusal application are that on 14.01.2023 and 18.01.2023 respectively the Provincial Assemblies of Punjab and Khyber Pakhtunkhwa were dissolved. On 16.02.2023 when Justice Ijazul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi recommended the CJ to take suo motu notice of the delay in holding General Elections to the Punjab Assembly. Curiously, on that date the first three audio recordings were leaked by indibell. It further said that without confirming the veracity of the audios or ascertaining the identity of the person who uploaded them, the federal ministers on the same day lent support to the news of the leaked audios on national media.
It added that shortly after on 18.02.2023, a Constitution Petition was filed by the Speakers of the Punjab and Khyber Pakhtunkhwa Assemblies in Court. Acknowledging that it was the custodians of the two dissolved Provincial Assemblies who had petitioned the Court, the CJ fixed their Petition and connected matters (“Speakers Petition”) for hearing before a 9 Member Bench on 23.02.2023. 25. The SC said that at the very outset of the proceedings one of the learned Judges objected to the presence of Justice Ijazul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi on the Bench. It was urged that by recommending the CJ to take suo motu notice of the delay in announcing the date of General Elections to the Punjab Assembly the two learned Judges had ‘already expressed their opinion by stating that elections “are required to be held within 90 days” and that there was “eminent danger of violation” of the Constitution.’
It also said that on the same day, before any arguments on the merits could commence another two learned Judges in their separate notes dated 23.02.2023 dismissed the Speakers Petition.
The judgement stated that capitalising on the disorderly proceedings, the ruling coalition parties sought the recusal of Justice Ijaz ul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi on the next day i.e., 24.02.2023 from the Bench hearing the Speakers Petition. The basis of the objection was that the two learned Judges had already disclosed their minds on the question in issue. Under the practice of the Court the CJ may commence Suo Motu proceedings against the alleged violation(s) of Fundamental Rights on the recommendation of a Bench of the Court.
It maintained that this mode of invoking suo motu jurisdiction has been recognised and upheld by a larger Bench in SMC No. 4 of 2021 (supra). Consequently, in rejecting the recommendation of the two learned Judges the ruling coalition parties lost sight of this judgment of the Court affirming its settled and declared practice.
“The apparent purpose of the Federal Government for seeking the recusal of the two learned Judges through an ill-conceived objection was to disrupt or otherwise delay the proceedings in the Speakers Petition. Due to the turbulent hearings of both 23.02.2023 and 24.02.2023 the nine Hon’ble Judges on the Bench met in Chambers on 27.02.2023 to discuss the means for restoring harmony in the proceedings, said the SC.
It added, “Ultimately, all nine Judges unanimously resolved vide order dated 27.02.2023 that the CJ should reconstitute the Bench. Pursuant to the said order a 5 Member Bench was constituted to hear the case. The Federal Government did not oppose the reconstituted Bench and therefore the matter proceeded and was decided by a majority of 3:2 through short order dated 01.03.2023. The three Judges in majority declared that the Speakers Petition was maintainable and directed, inter alia, that the General Elections to the two Provincial Assemblies must be held within 90 days of their dissolution as mandated by Article 224(2) of the Constitution. The two learned dissenting Judges held the Speakers Petition to be not maintainable and therefore dismissed the same. The said decision displeased the Federal Government which rejected it by proclaiming that the Speakers Petition had actually been dismissed by a majority of 4:3 (after taking into consideration the separate notes earlier authored by the two learned Judges on 23.02.2023 as part of the original 9 Member Bench).5 On that pretext the Federal Government refused to accept and implement the short order dated 01.03.2023.”
The apex court stated that the Federal Government repeated its above mantra of dismissal of the Speakers Petition by 4:3 during the hearing of a subsequent election matter. In Constitution Petition No.5 of 2023 the order of the ECP dated 22.03.2023 was challenged for unilaterally extending the date of General Elections to the Punjab Assembly from 30.04.2023 to 08.10.2023. The Federal Government hampered the progress of the proceedings in that case under the false guise of dismissal of the Speakers Petition by an alleged majority of 4:3. However, in doing so it ignored the important fact mentioned above that all 9 Members of the Bench vide order dated 27.02.2023 requested the CJ to reconstitute the Bench hearing the Speakers Petition. The CJ accordingly formed a 5 Member Bench. At no stage was a 7 Member Bench constituted to return a 4:3 verdict on 01.03.2023 in the Speakers Petition as contended by the Federal Government. The order of the ECP dated 22.03.2023 challenged in Constitution Petition No.5 of 2023 was set aside by the Court on 04.04.2023 for violating the constitutional command to hold General Elections to a Provincial Assembly within 90 days of its dissolution.
It continued that nonetheless, the federal government chose not to comply with this order of the Court. Instead it insisted, rather inexplicably, that the short order issued by the 5 Member Bench of the Court on 01.03.2023 had rejected the very maintainability of the Speakers Petition by 4:3. The consequence is that two out of four Provinces continue to be governed by unelected caretaker governments without any end in sight. It further said, “The resistance of the Federal Government and its coalition parties to our proceedings and judgments has also expanded to hurling threats6 and making scathing attacks against certain Judges of the Court ever since the audio recordings were leaked.” “An extreme example of a personal attack on Judges was witnessed on 15.05.2023 when the Court was hearing the review petition filed by the ECP against the order of the Court dated 04.04.2023 passed in Constitution Petition No.5 of 2023 directing the General Elections to the Punjab Assembly to be held on 14.05.2023. On that day certain political parties forming part of the ruling coalition staged an aggressive demonstration outside the Court threatening the CJ of serious consequences in the event of the Court taking coercive action for securing compliance with its order dated 04.04.2023,” added the court.