A larger Supreme Court bench stopped the three-member judicial commission from working until the next hearing.
“In the circumstances, till the next date of hearing, the operation of the impugned notification … issued by the Federal Government is suspended as is the order dated 22.05.2023 made by the Commission and in consequence thereof proceedings of the Commission are stayed,” a written order read.
The case will be heard again on May 31.
“The establishment of the commission is a violation of Article 209 [Supreme Judicial Council] of the Constitution,” CJP Umar Ata Bandial said while presiding over the petitions on Friday. “It seems that the inquiry commission has done everything in haste.”
Led by the CJP Umar Ata Bandial himself, the bench includes Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Shahid Waheed, and Justice Hassan Azhar Rizvi. The bench took up a set of four petitions moved by President of the Supreme Court Bar Association (SCBA) Abid Shahid Zuberi, SCBA Secretary Muqtedir Akhtar Shabbir, PTI Chairman Imran Khan, and Advocate Riaz Hanif Rahi.
The commission, headed by Justice Qazi Faez Isa, was formed on May 20 under Section 3 of the Pakistan Commission of Inquiry Act 2017 and is required to conclude the task within a month.
Babar Awan appeared in the court on behalf of PTI chief Imran Khan. SCBA President Abid Zuberi and SCBA Secretary Muqtadar Akhtar Shateer and petitioner Riaz Hanif Rahi also appeared in the court. Attorney General for Pakistan Mansoor Usman Awan was also in attendance.
The written order
The order sums up the arguments made by the petitioner and also mentions that they placed reliance on Qazi Faez Isa’s case, the same judge heading the audio leaks commission.
The point was made on the matter of privacy and quoted from the Faez Isa case to say that:
“The violation of this sphere of the absolute privacy right makes the inadmissibility of evidence collected in violation thereof also absolute. Absolute right entails absolute prohibition on its violation.”
The order adds that the leaks were made by an ‘unknown’ hacker named ‘indibell’ so first the matter of their authenticity has to be confirmed.
“The first and primary question was the very veracity, credibility and legality of, and authorization for the alleged audios and so also the identity of the person or “hacker” engaged in or abetting such acts,” the order said.
The order also mentioned that the government’s request for the CJP to recuse himself mentioned that the CJP would not have made Justice Isa the chairman of the commission.
“It was an accepted and settled constitutional principle, acted upon several times in the constitution of Commissions whenever a sitting Judge was intended to be made a member thereof, that the permission of the Hon’ble Chief Justice of Pakistan had first to be sought.”
At the outset of the hearing, AGP Awan raised an objection over the constitution of the five-member bench.
On this, the chief justice wondered how the government can select the judges of the Supreme Court for its purposes. He told the AGP that it was a matter of the freedom of the judiciary. “That is enough,” CJP Bandial said and asked the attorney general to sit down.
The chief justice added that the government cannot include a judge on the bench at whim. “We asked the question that it is written in Article 184b (original jurisdiction of Supreme Court) that there should be a bench of at least five judges. “If you had consulted us, we would have told you,” he said.
The chief justice added that the “benefit” of the May 9 incident was that the rhetoric against the judiciary ended.
CJP Bandial said: “If the government had consulted us, it would have shown a better way. You made bail and family cases also a part of this legislation. After the May 9 tragedy, the rhetoric against the judiciary stopped.”
Addressing the AGP, the CJP said: “You should not interfere with our administrative authority, we fully respect the government.”
CJP Bandial remarked that the judiciary was the guardian of fundamental human rights. The government hastily enacted legislation to regulate the powers of the chief justice, he added.
AGP Awan urged that the larger bench should not hear the case. To which, the CJP told the attorney general that it was his right to object.
Govt tried to create differences among the judges: CJP Bandial
At the hearing, Abid Zuberi’s lawyer Shoaib Shaheen presented his arguments.
The CJP asked whether it was not written in the constitution of the judicial commission who did the phone tapping. Phone tapping was an unconstitutional process, CJP Bandial remarked.
On this, Justice Muneeb Akhtar remarked that the taping of telephone conversations was not only “illegal” but also “against human dignity” under Article 14 (inviolability of dignity of man, etc) of the Constitution. This case also raised a question over the independence of the judiciary, he added.
Shaheen said that phone tapping itself was an unconstitutional process. “There is no mention in the code of inquiry commission as to who tapped the phones. The government is giving the impression that the process of phone tapping is valid,” he said.
Shaheen went on to add that the government should admit that one of the country’s agencies did the phone tapping. To this, the CJP mentioned the Benazir Bhutto government case on phone tapping.
He added that rules were laid down in the Justice Qazi Faez Isa case. The chief justice inquired who would determine if any judge violated the code of conduct.
On this, Shaheen said that under Article 209 of the Constitution, this authority belongs to the Supreme Judicial Council. “The power of the judicial council has been given to the Commission of Inquiry,” he added.
The chief justice remarked that on the basis of assumption, the audios were accepted as correct.
Shaheen argued that phone tapping and bugging were against the privacy of citizens. The constitution and law of Pakistan does not allow this, he added.
“In Justice Qazi Faiz Isa’s case, some such principle was decided in the majority decision. Surveillance of judges has been prohibited,” he said.
Shaheen argued that there was no law that “empowered agencies to tap citizens’ phones and invade privacy”. “Violating privacy is against basic human rights. It is the responsibility of a democratic government to uphold the rule of law and the fundamental rights of citizens and protect their privacy,” he added.
Shaheen went on to add that the commission has notified the whole of Pakistan that whoever has the material can submit it, and no legal procedure has been followed.
To this, the CJP remarked that he (Shaheen) said that the establishment of the commission was also a violation of Article 209 of the Constitution.
The Supreme Court has given judgments in the case of Iftikhar Chaudhry and Justice Qazi Faiz Isa, Shaheen replied.
Justice Akhtar remarked that Article 209 allowed the executive to refer a presidential reference to the Supreme Judicial Council. Apparently, he said the federal government has “misconduct” by collecting material against the serving judges of the SC.
Justice Akhtar further remarked that the federal government has violated the division of powers in the Constitution. To this, the CJP remarked that it seemed that the inquiry commission seems has done “everything quickly”.
“How judges can become part of the commission at will. With the permission of the CJP, an action against a judge of the high court can be taken to any forum other than the judicial council.”
Justice Akhtar further remarked that an attempt was being made to give cover by using “sweet words”. “Apparently, the constitutional principle of separation of powers has been seriously violated. This is a very disturbing situation.”
He inquired that when the audio was being played, did not the government or Pemra issue any instructions to stop it? To this, Shaheen told the court that Pemra did not take any action against him and the government also did not investigate Pemra.
The AGP said that he agreed with the court to the extent of Pemra.
The hearing on the petitions was completed and the court reserved its decision. The SC will issue a summary order in this case.
SCBA President Zuberi, in his petition, has made the federal government, audio leak commission, Pemra, and PTA parties. He argued that the notification of the commission was in “violation of the Constitution”.
He pleaded that no citizen “can be spied on or phone tapping”, the notification of the Audio Leaks Commission is a violation of articles 9 (security of person), 14 (inviolability of dignity of man, etc), 18 (freedom of trade, business or profession), 19 (freedom of speech, etc), and 25 (equality of citizens).
Zuberi asked to declare the formation of the commission and its orders unconstitutional.
The commission will meet again on May 27.
The PTI approached the Supreme Court against the formation of a judicial commission by the federal government to probe the audio leaks which surfaced in the media.
Earlier this week, the audio leaks commission announced that the audio leaks hearing would be made public and it will also examine the request for in-camera proceedings on the sensitive issue.
The commission also directed the attorney general to provide mobile phones and SIMs to the commission and said that the phone number provided to them will be made public.
More to follow…