ISLAMABAD: The Supreme Court on Friday censured the previous coalition government for seeking the recusal of three judges from a five-judge bench hearing pleas challenging the constitution of a three-member commission to probe the veracity of audio leaks that implicated politicians, as well as judges and their family members.

Authored by Chief Justice of Pakistan (CJP) Umar Ata Bandial, a 32-page judgement descr­ibed the-then Pakistan Democ­ratic Movement govern­ment’s act as “an attack on the independence of the judiciary”.

The apex court used the judgement to put the previous government in the dock, calling into question several of its actions.

Those actions of the previous government ranged from giving permission to a protest outside the SC building, where such demonstrations are strictly prohibited, to making legislation aimed at halting proceedings of a review plea filed by the ECP.

Though the judgement concerns the government’s May 19 notification of constituting the inquiry commission to probe the veracity of alleged audio leaks, yet it went on to discuss the government’s application seeking recusal of the CJP, Justice Ijazul Ahsan and Justice Munib Akhtar. But the prayer was ultimately confined only to the extent of CJP, the order mentioned.

There is no rule of Islamic law requiring a judge to refrain from administering justice in matters in which his personal interest or that of his relatives is involved, it said.

The recusal application was instituted against the backdrop of cases pertaining to the dissolution of the Punjab and Khyber Pakhtunkhwa assemblies and subsequent proceedings for holding elections within the stipulated period of 90 days.

The Supreme Court held that the recusal application was devoid of merit and legal force.

The judgement regretted that resistance on the part of PDM government and its coalition parties to court proceedings and judgements even extended threats during press conferences by the information minister.

Such control was exercised on account of the pending ECP review petition against the April 4 order of fixing May 14 as the date for holding elections in Punjab.

Silent spectator

It recalled that the former minister made scathing attacks on certain judges ever since the audio recordings — one of which contained a conversation featuring the CJP’s mother-in-law — were leaked.

In a strongly-worded response to the conduct of the previous government, the verdict cited what it called an extreme example of personal attack on the judges on May 15, when the court was hearing a review petition of the Election Commission of Pakistan (ECP) against its April 4, order of holding elections to the Punjab assembly on May 14.

On that day, political parties part of the ruling coalition had staged an aggressive demonstration outside the SC building, threatening the CJP with serious consequences in the event the court took coercive action to secure compliance with its April 4 order.

The judgement said the disturbing aspect was that such protests were strictly prohibited in the Red Zone area.

Government machinery, the judgement regretted, facilitated the entry of a horde of protesters and remained a silent spectator to their slander, the discernible purpose of which was to pressurise the court and its judges into giving a favourable decision or no decision at all.

The power show, assisted by the federal government, was a direct attack on the independence of judiciary, the ruling said.

Adjudication delayed

Despite constraints under Article 19 and 68 of the Constitution on discussing the conduct of judges, it is regrettable that among others, the cabinet members also flouted these constitutional limits, the judgement regretted.

“Judges were assailed in harsh and intemperate language to justify the defiance of decisions that were perceived to be detrimental to the federal government or its interests in matters of the general elections.

“We note,” the judgement said, “the federal government by various machinations and stratagems managed to delay adjudication by the apex court and also discredited its judgements. This happened when our March 1, 2023 [order] was reinvented to have dismissed the Speaker’s petition by a majority of 4:3 thereby denying its true legal effect.”

Then, without challenging the April 4 order, the federal government took refuge behind the ECP’s review petition filed against that order to justify its inaction.

Subsequently, parliament enacted the Supreme Court (Review of Judgements and Orders) Act, 2023, which came into effect on May 26, 2023 to change the scope and form of review and as a result, the proceedings in the partly heard review petition filed by ECP were stalled pending adjudication of vires of that law. The Act has since been found and held to be ultra vires of the Constitution, the judgement said.

Published in Dawn, September 9th, 2023