ISLAMABAD: The federal government requested Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Munib Akhtar to recuse from a five-member bench that will hear the petitions against the formation of the inquiry commission to probe the audio leaks today (Wednesday).
The government, on Tuesday, filed a Civil Miscellaneous Application (CMA) under Rule 5 and 6 of the Supreme Court Rules, further requesting the chief justice to reconstitute the bench to decide the questions raised in the petitions. Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan, President Supreme Court Bar Association (SCBA) Abid Shahid Zuberi, SCBA Secretary General Muqtedir Akhtar Shabbir, and advocate Riaz Hanif Rahi have filed the petitions against the inquiry commission.
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 May 26, a day before the hearing of the inquiry commission, suspended the operation of the notification and granted stay against the proceeding of the commission until May 31.
The federal government on May 20th set up the Commission in exercise of its power under Section 3 of the Pakistan Commissions of the Inquiry Act, 2017, to inquire into the veracity of the wide circulations of audio in the media and social media.
The CMA said that a fair justice system demands and sustains upon the existence of any impartial judge, being a principle - that “no man shall be a judge in his own cause.” It pointed out that on 26-05-23 the federation requested the chief justice to recuse from the bench, but that was not entertained whilst placing reliance upon the Supreme Court judgments.
The application said that not one judgment pertains to a factum where the judges were requested to recuse on account of conflict of interest premised on close family relations. The Code of Conduct for judges of the Supreme Court and High Courts lays down the parameter of the conduct as expected and becoming of a judge enabling them to discharge their duties in accordance with their oath and constitutional obligations. Article IV of the Code says; “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.” The commission seeking an inquiry into the veracity of audio leaks, of which one particular audio leak present in the TORs of the Commission is attributed to the mother-in-law of the Chief Justice of Pakistan. The inclusion of the chief justice in the bench hearing the petitions against the inquiry commission raises grave concerns regarding appearance of impartiality.
The government submitted that owing to the past practice of the Supreme Court, particularly, PLD 2012 suo moto action regarding allegation of business deal between Malik Riaz Hussain and Dr Arsalan Iftikhar attempting to influence the judicial process, the then Chief Justice (Iftikhar Muhammad Chaudhry) recused to hear the matter as the allegations were levied against his son.
The CMA pointed out that in addition to presence of chief justice the audio leaks also concern two other members of the bench. One audio leak pertains to a conversation between the petitioner and the then chief minister (Pervaiz Elahi]), discussing the case of CCPO, Lahore (Ghulam Mehmood Dogar vs federation).
The bench hearing that case was headed by Justice Ijazul Ahsan. Another audio leak is about a conversation between a senior lawyer’s wife and the mother-in-law of the chief justice, wherein, reference has been made to another judge of the bench, i.e., Justice Munib Akhtar.
Consequently, propriety and good sense dictate and demand that Justice Ijaz and Justice Munib may also graciously recuse themselves from the hearing of the petitions.
The decision to recuse oneself from a case due to a conflict of interest is typically guided by the Code of Conduct, oath of office and highest ethical standards professed and followed by the judges. The salutary principle of impartiality lies at the very core of the functioning of the Supreme Court and is of paramount importance in ensuring the fairness and integrity of the judicial system. Impartiality requires judges to approach cases with an open mind, devoid of personal interest, external influences and even a perceived conflict of interest.
In the context of the apex court, the role of impartiality becomes even more critical. As the highest authority in interpreting the Constitution and making decisions that can shape the nation’s future, this Court bears immense responsibility. When conflicts arise or are brought to the attention of the judges, it is incumbent upon them to recuse themselves from the case, thereby ensuring that the integrity and impartiality of the Supreme Court remain intact.
Copyright Business Recorder, 2023