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.