• Centre’s plea urges CJP, justices Ahsan and Akhtar to recuse themselves from bench
• Asif asks Justice Bandial to distance himself from proceedings; regrets scuttling of commission consisting of superior court judges

ISLAMABAD: The federal government on Tuesday sought the reconstitution of a five-member bench hearing pleas against the formation of a judicial commission — set up to probe the veracity of recent audio leaks that had implicated politicians as well as judges of the top court and their family members.

The appeal against the bench headed by Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Munib Akhtar, among others, came a day before the hearing of the case against the judicial commission, which was established by the government without taking the CJP in the loop.

In response to the petitions, the Supreme Court stayed proceedings of the commission on May 26, and the next day, the three-man commission subsequently postponed proceedings till the final outcome of the Supreme Court hearing.

In its application filed on Tuesday, the government asked CJP Bandial, Justice Ahsan, and Justice Akhtar to distance themselves from the five-member bench since “rules of natural justice” demanded that the “adjudicator should be impartial”.

It pleaded that the code of conduct for judges of the Supreme Court and high courts “lays down the parameters of the conduct as expected and becoming of the judge to discharge their duties in accordance with their oath and constitutional obligations”.

“The instant article warrants immediate application owing to the factum that the inquiry commission formed under Section 3 of the Inquiry Commission Act, 2017, under challenge in the petition pertains to seeking inquiry into the veracity of audio leaks, of which one particular audio leak present in the Terms of Reference (TORs) of the commission is attributed to the mother-in-law of the CJP.”

Having Justice Bandial on the bench hearing the matter that seeks to challenge the inquiry commission on audio leaks pertaining to a very close family member of CJP “contributes to and raises grave concerns vis-a-vis appearance of impartiality”, the application alleged.

“These objections pertain only to the appearance of impartiality and conflict of interest and therefore are distinct and separate to bias which has neither been raised nor is the contention of the applicant,” the petition said, adding the conflict of interest also does not pertain to pecuniary or proprietary interests.

Moreover, in addition to the objection raised about the presence of the CJP on the bench, the application pointed out that the audio leaks also concerned two other members, Justice Akhtar and Justice Ahsan.

One audio leak pertains to a conversation between petitioner Abid Zuberi and the then chief minister, discussing a case of CCPO Ghulam Mehmood Dogar. The bench hearing the case was headed by Justice Ahsan.

Similarly, another audio leak was about a conversation between a senior lawyer’s wife and the mother-in-law of the CJP, wherein reference was made to Justice Munib Akhtar.

“Consequently, propriety and good sense dictate and demand that Justice Ahsan and Justice Akhtar may also graciously recuse themselves from hearing the captioned petition,” the application said.

CJP should ‘keep out’: Asif

Separately, Defence Minister Khawaja Asif also urged CJP Bandial to “distance himself from the bench to ensure that “true justice is served to the aggrieved”, the APP news agency reported.

Speaking on the floor of the National Assembly on Tuesday, the defence minister claimed that the CJP had rejected the judicial commission because his mother-in-law’s purported audio leak was also being investigated.

“We expected that the chief justice would keep himself out of this [matter] to ensure justice,” the minister said, regretting that the CJP had “scuttled” the commission comprising Supreme Court and high court justices.

He recalled that during a legal battle between his son and real estate tycoon Malik Riaz, former chief justice Iftikhar Muhammad Chaudhry had recused himself from the case due to a conflict of interest.

Published in Dawn, May 31st, 2023