Daily Times

The Supreme Court (SC) on Friday dismissed the objections of the last Pakistan Democratic Movement government to the bench hearing cases challenging the inquiry commission constituted to probe the authenticity of audio leaks, declaring the same as an attack on the independence of the judiciary.

The apex court, in a detailed verdict written by Chief Justice of Pakistan Umar Ata Bandial, said, “The court’s query about how the CJP or his relative’s interest were involved in the case was ‘neither answered nor explained’ by the Attorney General for Pakistan (AGP). He candidly admitted though that no pecuniary or propriety interest of either the CJP or his relative was tied with the fate of the said petitions. “When asked to explain the term ‘conflict of interest’ the learned AGP merely clarified that as a ground of recusal it was distinct from ‘bias’. The latter being an allegation that the Federal Government had not raised.

“The diffidence of the learned AGP to respond to the court’s questions denotes that the objection of the then Federal Government may have been raised nonchalantly possibly to delay a decision on the merit or to harass the concerned judge.”

The order further said that conflict of interest and bias were indeed two distinct grounds on which a party could seek the recusal of a judge from hearing a case. “Whilst conflict of interest is related to the judge’s interest in the subject matter of a particular case, bias is concerned with his state of mind and his feelings towards the parties appearing before him. Since the learned AGP confined his submissions to the ground of conflict of interest only and not on bias, it is clear that the Federal Government does not anticipate any prejudice from the CJP.

“The AGP’s failure to identify the specific cause, and the interest of the CJP or his relative rendered the previous government’s allegations against the top judge “fanciful”.

“Moreover, the relative of the CJP is neither a party in these petitions nor is she claimed to be involved in the controversy under adjudication before the court. Therefore, it appeared that the ‘illusionary claim of conflict of interest’ against the CJP had been alleged, prima facie, to postpone a decision in the case. Such an object appears to be consonant with the Federal Government’s strategy […] of blocking or delaying the court’s decisions on questions of law requiring the interpretation of constitutional principles.” The SC noted,”The judgment also reflected on the previous government’s “inimical” treatment of the top court and some of its judges ever since the recommendation for suo motu notice was made by a two-member bench of the court to the CJ on 16.02.2023.”

It said, “This exercise is helpful for understanding the likely purpose of the Federal Government in filing the present recusal application because there is a chain of events in which the previous government and its ministers had sought to “erode the authority” of the court and to “blemish the stature of some of its Judges with the object of blocking, delaying or distorting the result of the judgments of the court on the constitutional right of the people to be governed by an elected government.”

The order said that the previous government, through “various machinations and stratagems”, had managed to delay adjudication by the court and also discredited its judgments.

It cited the Supreme Court (Review of Judgments and Orders) Act, 2023 enacted by the Parliament – which had since been struck down by the court – seeking repeated recusals of certain judges and “incendiary” remarks made by former ministers as examples.

It also said that the then-government “took refuge” behind the ECP’s (Election Commission of Pakistan) review petition against the April 4 order of holding elections to the Punjab Assembly.

“The court has faced all such actions of the Federal Government with tolerance, forbearance and restraint. However, it goes without saying that any refusal to implement a final and therefore binding judgment of the court can be visited with consequences laid down in the Constitution,” it added.

The order said that the application filed by the Federal Government was declared to be “devoid of merit and legal force”.

“To our minds the recusal application suffers from the common defect of being motivated and hence constitutes an attack on the independence of the judiciary. In view of the foregoing, the recusal application is dismissed,” the order concluded.

It may be mentioned that the SC had reserved its verdict on the government’s plea on June 6, after hearing arguments from respondents.

The previous coalition government had formed the inquiry commission on May 20, under Section 3 of the Pakistan Commission of Inquiry Act 2017. The commission was led by Justice Qazi Faez Isa and also comprising Chief Justice Balochistan High Court Naeem Akhtar Afghan and Islamabad High Court Chief Justice Aamer Farooq. On May 26, a five- member bench of the top court had restrained the panel from going ahead with its task. The order was passed on a set of petitions moved by Supreme Court Bar Association (SCBA) President Abid Shahid Zuberi, SCBA Secretary Muqtedir Akhtar Shabbir, Pakistan Tehreek-e-Insaf chairman, and Advocate Riaz Hanif Rahi seeking to declare the constitution of the audio leak commission illegal.

However, the PDM government sought the reconstitution of the five-member bench led by Chief Justice of Pakistan Umar Ata Bandial and comprising Justice Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed hearing the pleas against the formation of the commission.