• Dissenting notes of four members of bench released Monday.
• Justice Shah says apex court’s greatest strength lies in public trust.
• Says it’s every judge’s constitutional duty to sit on bench formed by CJ.
  

ISLAMABAD: Registering his reservations over the election date suo motu notice, Justice Mansoor Ali Shah Monday termed as inappropriate the inclusion of a judge — on the bench — who was purportedly linked to a controversial audio leak and was reportedly facing references in Supreme Judicial Council.

Justice Shah in a note of dissent, released Monday, said he chose not to recuse himself from the case despite caveats regarding the invocation of the jurisdiction of this court and the constitution of the bench.

The dissenting notes of Justice Shah, Justice Athar Minallah, Justice Yahya Afridi, and Justice Jamal Mandokhail were released Monday. 

He, without mentioning the name of Justice Syed Mazahar Ali Akbar Naqvi, against whom a reference had been filed in the Supreme Judicial Council (SJC) and the issue of leaked audio, asked why an institutional response was not given in this regard.

“It is a constitutional and legal duty of every Judge of this Court to sit in a bench constituted by the hon’ble chief justice and hear case(s) entrusted to that bench, unless, for some lawful justification, a judge recuses himself from hearing a particular case. In the absence of any lawful justification, mere recusal may amount to abdication of the constitutional and legal duty. With this understanding, I have opted not to recuse myself from hearing these cases, despite having reservations on how the original jurisdiction of this Court under Article 184(3) of the Constitution has been invoked suo motu in the present case as well as on the constitution of the present Bench. I, however, find it my constitutional and legal obligation to bring on record my reservations, lest it may be misunderstood that I have none and my silence taken as my assent,” he noted.

He said the suo motu was invoked on the recommendation of a judicial order of a two-member bench while hearing a service matter of a civil servant.

“The order was made in a case which, in my view, had no concern whatsoever with the present matter before us, reflecting to an ordinary reader of the order an unnecessary interest of the two-member Bench in the matter.”

Justice Shah stated that attached to the said order was a controversy in the public domain, generated by the audio leaks relating to one of the members of the said bench.

Lamenting the silence on the leaked audio clips and the allegations against a Supreme Court judge, Justice Shah said, “in spite of the requests from within the court and outside the court, there has been no institutional response to the allegations either by this court or by the constitutional forum of the Supreme Judicial Council.”

“Further, there is news of references being filed against the said member before the Supreme Judicial Council by the Bar Councils. In this background and before these allegations could be probed into and put to rest, the inclusion of the said member on the bench in the present matter of ‘public importance’ appears, most respectfully, inappropriate. This inclusion becomes more nuanced when other senior hon’ble judges of this court are not included on the Bench.”

“The chief justice has been pleased to observe in his order invoking the original jurisdiction of this Court under Article 184(3) of the Constitution suo motu, in categorical terms that ‘these matters involve the performance of constitutional obligations of great public importance apart from calling for faithful constitutional enforcement’.”

He added that despite all these facts, the two senior-most judges of this court had not been made part of the bench to hear and decide upon the matters of ‘great public importance’, for reasons not expressed in the order constituting the present bench.

“Our greatest strength as an apex judicial institution lies in the public confidence and public trust people of our country repose in us. Our impartiality, including the public perception of our impartiality, transparency, and openness in dispensing justice must at all times be undisputed and beyond reproach,” Justice Shah said.