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ISLAMABAD: The Supreme Court on Friday dismissed the federal government’s application for the recusal of Chief Justice Umar Ata Bandial from a bench that heard the petitions against the constitution of inquiry commission to probe the alleged audio leaks.

A five-judge bench, headed by Chief 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: “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.” “Its (application) object lacks good faith for aiming to harass a Member of the Bench without cause in order to avoid adjudication on the constitutional failings pointed out in the impugned notification by Const P Nos14 to 17 of 2023,” it added.

Bench on audio leaks case: SC to announce verdict on recusal of judges today

“The failure of the AGP (Mansoor Usman Awan) to identify the specific cause and hence the interest of the CJ or of his Relative that may be affected by the said petitions renders the allegation of the Federal Government against the CJ fanciful. Moreover, the Relative of the CJ is neither a party in these petitions nor is she claimed to be involved in the controversy under adjudication before the Court,” the judgment said.

The judgment said that amongst others, Cabinet Members had also flouted the constitutional limits. “Judges were assailed in harsh and intemperate language to justify the defiance of decisions that were perceived to be detrimental to the Federal Government and/ or its interests in the matters of the General Elections.”

It maintained that in the face of the federal government’s uncooperative stance the Court exercised restraint for the negation of its judgments notwithstanding its constitutional power to punish any person for disobeying any order of the Court. Such control was exercised on account of the pending review filed by the ECP against the order of the Court dated 04.04.2023, which fixed 14.05.2023 as the date for elections to the Punjab Assembly.

“The federal ministers have also routinely made incendiary statements on public platforms against Judges of the Court sitting on Benches hearing Constitutional Petitions pertaining to elections to the Provincial Assemblies to lend strength to the agenda of the federal government.”

The judgment said that the Court has faced all such actions of the Federal Government with tolerance, forbearance and restraint. “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 judgment noted 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. When despite the strict deadline no progress was made by the authorities responsible for holding the general elections, Justice Ijaz and Justice Sayyed Mazahar Ali Akbar Naqvi, on 16.02.2023, recommended the chief justice to take suo motu regarding delay in holding general elections to the Punjab Assembly.

Curiously, on that date, the first three audio recordings were leaked by indibell. 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.

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 chief justice fixed their petition and connected matters for hearing before a nine-member bench on 23.02.2023.

At the very outset of the proceedings, one of the 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 judges had already expressed their opinion by stating that elections “are required to be held within 90 days” and that there was an “eminent danger of violation” of the Constitution.

On the same day, another two learned judges in their separate notes, dated 23.02.2023, dismissed the speakers petition. Capitalising on the disorderly proceedings, the ruling coalition parties sought the recusal of Justice Ijazul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi on the next day, i.e., 24.02.2023 from the bench hearing the speakers’ petition.

Thereafter, the chief justice constituted a five-member bench, which by a majority of 3:2 declared that the speakers’ petition was maintainable. However, the two dissenting judges held the speakers’ petition to be not maintainable and therefore, dismissed them.

The judgment noted that 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 judges on 23.02.2023 as part of the original nine-member bench). On that pretext, the federal government refused to accept and implement the short order dated 01.03.2023.

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. The federal government chose not to comply with the Court’s order dated April 4, 2023.

The judgment observed that the resistance of the federal government and its coalition parties to our proceedings and judgments has also expanded to hurling threats 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 Court’s order dated 04.04.2023. On that day certain political parties forming part of the ruling coalition staged an aggressive demonstration outside the Court, threatening the CJP of serious consequences in the event of the Court taking coercive action for securing compliance with its order dated 04.04.2023.

It said that the disturbing aspect of the said demonstration was that the government machinery facilitated the entry of the horde of protestors 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 the judiciary. Although the freedom of speech guaranteed to the people of Pakistan by Article 19 of the Constitution is a fundamental right, this right is subject to reasonable restrictions imposed by the law.

Copyright Business Recorder, 2023

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