Audio leaks commission: Govt objects to CJP Bandial's inclusion in bench

• AGP requests against CJP's participation in bench. 
• "Judiciary not subservient to govt," chief justice tells AGP.
• Justice Munib Akhtar says govt has no right to investigate judge.

ISLAMABAD: The government on Friday objected to Chief Justice of Pakistan (CJP) Umar Ata Bandial’s inclusion in the five-member bench formed to hear pleas challenging the formation of a judicial commission tasked to probe audio leaks involving the judiciary.

The bench, a day earlier, was constituted by CJP Bandial to conduct hearing of the pleas filed under Article 184(3) of the Constitution.

Those who have challenged the petitions include Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan, Muqtedir Akhtar Shabbir, Advocate Riaz Hanif and Supreme Court Bar Association President Abid Shah Zubairi.

The bench is being headed by CJP Bandial and comprises Justice Ijaz Ul Ahsan, Justice Munib Akhtar, Justice Syed Hassan Azhar Rizvi and Justice Shahid Waheed.

At the outset of today’s hearing, Attorney General for Pakistan (AGP) Mansoor Usman Awan requested the CJP to recuse himself from the case and leave the matter to the next senior-most judge. 

“It is requested that the chief justice should not be a part of this bench,” AGP Awan said.

Responding to the AGP, CJP Bandial asked if he meant for him to leave the bench. “You should not interfere with our administrative authority.”

The top supreme court judge added that while he respects the request made by Awan, the post of the chief justice is constitutional.

“I knew you would raise this objection. The judiciary is not subservient to the government. There is a division of authority in the Constitution,” he remarked.

“The judiciary is the protector of basic human rights. We fully respect the government,” the chief justice said addressing Awan.

The country’s top judge also lamented over the government’s “hasty” decision to enact legislation regulating the chief justice’s powers. 

“How can the government use judges for its own motives,” CJP Bandial asked the AGP.

CJP Bandial also questioned the formation of the judicial panel without his consultation. He said that while consulting the chief justice is not mentioned in the Inquiry Commission Act 1956, it is a “practice” for the CJP to nominate a judge for the commission.

“Three such notifications were withdrawn previously when the chief justice was not approached. Five decisions of the Supreme Court also exist in this regard,” the CJP said.

The chief justice told the AGP to advise the government to follow the Constitution according to its spirit.

“The Pakistan Commissions of Inquiry Act, 2017, does not call for consultations,” Awan said, in response to the chief justice’s remarks.

At this, the CJP remarked that an attempt was made to create a rift between the judges. “The government also included bail and family matters in the commission.”

“This matter can be resolved,” the AGP said.

Responding to Awan, the chief justice told him to resolve the matter first after which the court will help him.

The top judge also warned the government against interfering in the Supreme Court’s affairs.

“Respected attorney general, we respect you and your client — the government. Respect the institutions, which also includes the judiciary,” he said.

He added that the May 9 events helped stop the rhetoric against the judiciary. “If the federal government resolves the matters according to the Constitution, then why would we object.”

“If [you want to] fight, then the attorney general should have come prepared,” he said while admonishing the attorney general.

When presenting his argument, Zubairi’s counsel Shoaib Shaheen said that phone tapping is an illegal act. “Inquiry commission’s code doesn’t mention that who has tapped the phone.”

The government, Shaheen said, is giving an impression that the process of phone tapping is legal.

“The government should admit that one of our agencies did the phone tapping,” he added.

The chief justice remarked that the case of former prime minister Benazir Bhutto’s government exist with regards to phone tapping.

“Rules have also been set in the Justice Qazi Faez Isa’s case. Who will determine which judge violated the code of conduct?” the CJP asked.

Shaheen said the authority belongs to the Supreme Judicial Council under Article 209. “The authority of the judicial council was given to the inquiry commission,” he said.

Meanwhile, Justice Akhtar remarked that tapping of conversations on phone is illegal. “Under Article 14, it is also against human dignity. The question of the judiciary’s independence also exists in this case.”

Justice Akhtar also said that the government has tried influencing the power-sharing structure. He questioned how the government can go against serving judges.

“How can the conduct of judges be determined by the inquiry commission?” he asked.

“It seems that the government has done everything in haste,” CJP Bandial remarked.

Justice Akhtar said that a senior judge has been tasked to review the conduct of judges.

“On the basis of the inquiry commission, the proceedings cannot be done in the Supreme Judicial Council,” the AGP clarified, adding that it is an independent forum.

Justice Akhtar remarked that government has apparently affected the constitutional structure of power distribution.

CJP Bandial questioned the role of Pakistan Electronic Media Regulatory Authority (Pemra) when the television channels ran the alleged audios on air.

Justice Akhtar said that cabinet minister continued holding press conferences over the alleged audios.

AGP Awan said he will present his arguments regarding the division of powers, as it was the first hearing of the matter.

“The government has no right to investigate the judge whether he has misbehaved or not,” Justice Akhtar commented.

The AGP added that the inquiry commission’s rules of procedure are extensive enough to review whether the alleged audios are lawful or not.

CJP Bandial said that the inquiry commission’s formation is in conflict with Article 209 and the judiciary’s powers.

“The work, which should have been done by investigative agencies, has been handed over to a judge,” the chief justice said.

“Handing over the matter to an agency could result in issues,” Awan stated.

The country’s top judge said that the judiciary cannot ignore the decisions made in the last 33 years with regards to its independence. “We have moral authority,” CJP Bandial said.

He added that the judiciary doesn’t have any weapons and functions publicly.

The court then wrapped up the the pleas for the day and the bench announced it would issue a brief short order later.

Formation of commission

Under Section 3 of the Pakistan Commission of Inquiry Act 2017, the government, on May 20, appointed a high-powered judicial commission — headed by Supreme Court Senior Puisne Judge Justice Qazi Faez Isa along with Balochistan High Court Chief Justice Naeem Akhtar Afghan and Islamabad High Court (IHC) CJ Aamer Farooq as members — to investigate the audio leaks involving former and sitting members of the judiciary. The commission has been tasked to complete the inquiry within 30 days.

Among the multiple audio leaks, the commission is also probing into the veracity of the alleged calls between former Punjab chief minister Chaudhry Parvez Elahi and a sitting top court judge as well as another call between CM Elahi and a Supreme Court lawyer over the constitution of an apex court bench.

Subsequently, PTI chief questioned the government for the "deliberate omission" of the terms of reference (TORs) and challenged the formation of the three-member judicial commission on audio leaks.

Babar Awan, Khan's lawyer and party leader, had filed the plea on his behalf requesting the court to declare the notification for constituting the commission null and void.

Similarly, Zubairi had also challenged the audio leaks commission to summon directing him to appear before the panel in connection with the inquiry.

Law Minister Azam Nazeer Tarar earlier said that the government did not consult CJP Bandial before forming the commission.

The judicial panel was constituted in the wake of widely circulated controversial audio leaks which raised “serious apprehensions about the independence, impartiality and uprightness of the Chief Justices/Judges of the Superior Courts in the administration of justice”.

Meanwhile, the commission has also summoned four people connected with the alleged audios including Zubairi, Advocate Khawaja Tariq Rahim, journalist Abdul Qayyum Siddiqui and son of former CJP Saqib Nisar, Najam Saqib, today.

Earlier this week, the Justice Isa-led commission announced that the proceedings of its inquiry will be made public as it held its first hearing earlier this week on Monday in courtroom number 7 of the Supreme Court.