ISLAMABAD: Heading a five-judge Supreme Court bench, Chief Justice of Pak­is­tan (CJP) Umar Ata Ban­dial on Tuesday asked if the government, with all its reso­urces, had ever taken any step to find out who was beh­ind the audio leaks, particularly when such clips were being released through the Twitter handle of a hacker.

“From where and how are these audio leaks coming forward and who is behind all this,” the CJP wondered during the hearing of a set of four petitions challenging the constitution of a three-judge commission by the government to probe audio leaks.

To put all such issues at rest, the federal government intentionally wanted that the three-judge commission und­e­r­take this exercise by probing all these aspects, argued Attorney General for Pakis­tan (AGP) Mansoor Usman Awan. He added the government’s plea for reconstitution of the five-member SC bench was not related to “bias” on part of any judge, but due to “conflict of interest”.

The government had sou­ght reconstitution of the bench, with the request that three judges — CJP Bandial, Justice Ijaz-ul-Ahsan and Jus­tice Munib Akhtar — sho­uld not be part of the bench. The court that reserved its ruling on the request is likely to issue an order soon.

On the other hand, the chief justice at the hearing of audio leaks case in reference to the judicial commission constituted by the government asserted that CJP office was a constitutional office that holds certain administrative powers vested in him by the law and the constitutional rule.

In the present case, the CJP was available and it was his responsibility to decide which judge should be spared to head the commission, he said, reiterating that the CJP had to make such decision even if the government presumed that the CJP was conflicted.

“Do you agree to this or disagree with this settled law,” the CJP wondered while pointing towards the top lawyer of the government.

Bench and commission

The AGP then explained to the bench that government’s application had two parts — one regarding the reconstitution of the bench and the other about the setting up of the commission in consultation with the CJP — and he would touch the second part only after its former request was accepted or rejected.

Citing Article IV of the Code of Conduct for superior court judges, the attorney general emphasised that a judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friend and then mentioned Terms of Reference (ToRs) of the Justice Qazi Faez Isa-led judicial commission, which also mentions the phone conversation between the mother-in-law of CJP Bandial with the wife of a senior lawyer.

Grilling the AGP, Justice Akhtar questioned when the government was not satisfied about the credibility and authenticity of the audio clips and set up the commission to ascertain their veracity, why Interior Minister Rana Sanaullah addressed a presser about one of the audio leaks mentioned in the ToRs, which was given wide publicity.

“Would it be legally permissible to turn around and then move an application by the government with a request that a particular judge should recuse him from the bench and should not hear the matter,” Justice Akhtar remarked.

He was of the opinion that either the minister should have resigned before issuing any statement and addressing the presser or the cabinet should have disowned it, as otherwise it would become an easy way to remove judges from the bench after hurling allegations through audio leaks or statements.

The AGP, however, replied that if any minister had addressed the press conference in pursuance of the policy decision of the cabinet, only then the question of collective responsibility would arise. At the same time, he added, the minister would not be guilty if he had addressed the news conference before May 19 — the date when the commission was constituted — but judge’s observation becomes relevant if the minister had made the statement after the said date.

The CJP also regretted the disparaging and malicious statements against the judges without ascertaining the truthfulness of the allegations. The judges were ridiculed through the audio leaks even before the government announced that they would be investigated, he noted.

Published in Dawn, June 7th, 2023