5-member SC bench to take up pleas against constitution of panel probing audio leaks

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5-member SC bench to take up pleas against constitution of panel probing audio leaks tomorrow​

Haseeb Bhatti
May 25, 2023

A five-member larger bench of the Supreme Court (SC) will take up four petitions challenging the constitution of a government-appointed judicial commission — formed last week to probe audio leaks leaked on social media over the last few months — tomorrow (Friday) at 11am.

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.

Balochistan High Court Chief Justice Naeem Akhtar Afghan and Islamabad High Court Chief Justice Aamer Farooq are also included in the commission which will have “all the power to fix responsibility against the delinquents for their alleged role behind phone tapping and could exercise authority to constitute special teams consisting of experts, or form an international team and seek international cooperation or exercise powers” under the Criminal Code of Procedure.

Earlier this week, the government-appointed commission conducted its maiden session in which it decided to make its proceedings public to ensure transparency and openness. The next session will be held on May 27.

According to the roster issued by the SC registrar on Thursday, the five-member bench will comprise Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi, and Justice Shahid Waheed.

The cause list issued today showed that four petitions have been filed under Article 184(3) of the Constitution by Advocate Abid Shah Zuberi, Muqtedir Akhtar Shabbir, PTI Chairman Imran Khan, and Advocate Riaz Hanif.

Article 184(3) of the Constitution sets out the SC’s original jurisdiction and enables it to assume jurisdiction in matters involving a question of “public importance” with reference to the “enforcement of any of the fundamental rights” of Pakistan’s citizens.

PTI petition​

The petition filed by the PTI chief, a copy of which is available with Dawn.com, alleged that the “self-styled” terms of reference (ToR) were politically motivated and aimed at affecting the independence of the judiciary.

The petition, filed by Advocate Babar Awan, contended that the act of constituting the commission and its notification amounted to a confession by the sitting regime that under their nose by phone tapping, fundamental rights as given under Articles 4, 9, and 19 were violated.

The petition highlighted the need for constituting a judicial commission to enforce the right to life, including the inviolability of dignity of man, equality before the law, protection of life to probe extra-judicial killings, alleged ruthless arrests, custodial tortures and deaths of common citizens/peaceful protestors and others, uploading of audios and videos of custodial torture, protection of women, girls, and boys, inviolability of privacy of home, inviolability of safeguards as to arrests and detentions, freedom of movement, assembly, speech, and the press.

The petition argued that the ToR of the commission suffered from a deliberate omission and they have failed to take into account the issue that who was behind unlawful and unconstitutional surveillance of the Prime Minister’s Office and sitting judges of the Supreme Court.

The petition requested the apex court to determine the effect of the formation of the commission by the federal government on their own without taking into consideration the provisions of Article 175(3) of the Constitution and without the sanction of the chief justice of Pakistan.

The commission​

According to an SRO issued on May 19, 2023, the controversial audio leaks regarding judiciary and former chief justices raised serious apprehensions about the independence, impartiality and uprightness of CJPs and judges of the superior courts in the administration of justice.

“Such audio leaks have eroded public trust besides serious concerns have been raised by the general public regarding the independence, impartiality and uprightness of the CJPs and judges of the superior courts,” the notification said, adding that judiciary was one of the main pillars under the Constitution and the society’s confidence was shattered when the independence of judiciary was tarnished.

“Therefore it is imperative to [hold] inquiry into the authenticity, correctness and veracity of these audio leaks to restore not just the credibility of the judiciary but also the public trust and confidence in the judiciary in the larger public interest, as a matter of definite public importance,” explained the SRO.

In response to a question, an insider told Dawn that Chief Justice Umar Ata Bandial was not consulted before the constitution of the commission — a common practice — as some of the leaks reportedly concerned his family members. Therefore, the CJP was “conflicted”; this was the reason he was not “requested to suggest names of judges to become members of the commission”.

According to the ToR, the commission will probe the authenticity of the audio leaks purportedly concerning the judiciary, a call between ex-CM Parvez Elahi and a lawyer regarding a Supreme Court judge; between Mr Elahi and lawyer Abid Zuberi regarding fixation of some cases before a particular SC bench; between Mr Elahi and an SC judge; between ex-CJP Saqib Nisar and lawyer Khawaja Tariq Rahim; between lawyer Tariq Rahim and journalist Abdul Qayyum Siddiqui on the outcome of a case pertaining to Imran Khan’s arrest on May 9; between Mr Khan and his party member about their links in the SC; between the mother-in-law of a top judge and wife of a lawyer regarding cases in SC; between the son of ex-CJP and his friend discussing the role of the ex-CJP in the award of the election ticket for a political party.

The commission will also inquire into the correctness of the allegations surfacing on print and electronic media and social media allegedly regarding the son-in-law (Ali Afzal Sahi) of the Lahore High Court CJ, allegedly influencing judicial proceedings before the LHC.

The commission will also determine violation, if any, of integrity or the process of administration of justice, independence of the judiciary, right to fair trial and equality of citizens, to determine the liability incurred by any or all persons named in the alleged audio leaks against or any other person or public office holders including under the Pakistan Penal Code, 1860 or any other law, to determine as to whether any disciplinary proceedings are attracted.

The commission will also be empowered to fix the responsibility of any person or public office holder aiding and abetting by any act in violation of the laws of Pakistan so determined, to recommend any necessary legal action by any agency, department or person etc. If these audio leaks proved to be fake or fabricated, the commission will inquire into and fix responsibility with regards to who is making these and recommend action to be taken in this regard, it added.

According to the TORs, it will be the duty of all executive authorities in the federal [government] and the provinces to aid the commission and comply with any of its directions.

The commission will be entitled to establish a secretariat and appoint a secretary for the inquiry at the cost of the federal government whereas the attorney general for Pakistan will assist the commission by providing all documents and material required by it.

The commission will initiate the inquiry immediately after the notification of its constitution and will conclude the investigation and submit its report to the federal government within 30 days which can be extended.

5-member SC bench to take up pleas against constitution of panel probing audio leaks tomorrow

Larger bench comprises CJP Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi, and Justice Shahid Waheed.

www.dawn.com

 

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Audio leaks commission interferes in judiciary’s internal matters, observes CJP Bandial​

Five-member bench reserves verdict on petitions against constitution of panel probing audio leaks; order to be issued shortly.

 

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Only CJ has power to nominate SC judges for commissions: CJ Bandia​

SC reserves ruling after concluding fiery hearing over pleas against Isa-led audio leaks body; to issue short order

 

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SC suspends govt notification over audio leaks commission​

Additionally, the top court also prohibits Justice Isa-led commission from conducting further proceedings

Our Correspondent
May 26, 2023


In a significant development, the Supreme Court issued an order on Friday, suspending the operation of the federal government's notification regarding the constitution of a judicial panel, formed last week to investigate audio leaks that have emerged on social media over the past few months.

Additionally, the top court also prohibited the commission from conducting further proceedings.

The decision came after a five-member larger bench heard petitions filed against the government forming a judicial inquiry commission to probe into the audio leaks surrounding the superior judiciary.

Last week, the federal government had formed the judicial commission to probe into over half-a-dozen leaked audio clips allegedly involving some current and former members of the superior judiciary and their family members to determine their “veracity” and “impact on the independence of the judiciary”.

The three-man judicial commission was led by SC senior puisne judge Justice Qazi Faez Isa and comprised Balochistan High Court Chief Justice Naeem Akhtar Afghan and Islamabad High Court Chief Justice Aamer Farooq.

However, Supreme Court Bar Association (SCBA) President Abid Zuberi filed a petition in the top court against the formation of the commission, arguing that the body was in violation of articles 9, 14, 18, 19, and 25 of the Constitution.

Subsequently, Chief Justice of Pakistan Umar Ata Bandial formed a five-judge larger bench to take up petitions filed against the formation of a judicial inquiry commission probing into the audio leaks allegedly involving current and former members of the superior judiciary and their family members.

Apart from the CJP as the head, the bench included Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.

"In the circumstances, till the next date of hearing, the operation of the impugned notification No.SRO.596(I)/2023 dated 19.05.2023 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 of the top court stated.

The issued orders stated that no judge of the apex court can be made a part of the commission without the consent of the chief justice.

The inclusion of high courts' chief justices in any commission is also subject to the approval of the Chief Justice of Pakistan, it added.

At the outset of the hearing, Attorney General of Pakistan (AGP) Mansoor Awan raised objections over the constitution of the bench. In particular, he objected to the inclusion of the CJ himself in the bench.

"I wish to bring the 6th Amendment to the court's attention," he said, which pertains to the retirement of chief justices of SC and high courts.

However, the court proceeded to express its dismay over the government's decision to proceed with the nomination of judges in the commission probing the audio leaks.

The AGP requested CJP Bandial to recuse from the bench but he refused to do so, saying that the government did not approach the chief justice for nomination of judges for inquiry commission as there were several judgments to support these points.

"The government cannot choose judges of its liking to sit on a bench," remarked CJ Bandial.

"It is the CJP's domain to nominate judges for a commission," remarked CJ Bandial, adding that "it is not necessary that the CJ includes himself in the commission and nor is the CJ bound by the wishes of the government."

"We respect the government completely," he stressed, but regretted that it had "rushed through laws to regulate the CJ's powers".

"We had raised an issue [with the government] that Article 184 posits that at least five judges must be included in the bench," he continued, "had you consulted us, we would have guided you better on this."

"Respected AGP, this is a matter of the independence of the judiciary," he exclaimed, questioning "how could the government pick judges to serve its own purposes?"

"I am sorry to say this, but the government has caused a rift between the judges," responded CJ Bandial.

"Enough is enough," CJ Bandial said, telling AG Awan to "sit down" and to "request the government to respect the constitutional traditions".

AG Awan insisted that he could "clarify the issue", but the CJ told the government to "bear quarters in mind".

"The government nominated the judges for the inquiry commission itself," he said, observing that "previously the government had issued three different notifications nominating judges which were later taken back."

"The 2017 Act has not been challenged," argued the AGP.

"We will return to this issue later," responded CJ Bandial. However, AG Awan insisted that he was prepared to argue this point "right away".

The court maintained its reservations about the constitution of the inquiry position, stating that the move stood in violation of the tracheotomy of powers and was a breach of Article 209.

"This is not an issue of egos," the CJ said, "we speak of the constitution here".

Justice Munib Akhtar also observed that "it appears as though the Supreme Judicial Council's powers have been granted to the commission".

"According to Article 209, a reference can be filed with an executive head after any information is received,' he further said, "but how can a misconduct case be handed over from the council to a commission?"

"Even if the judges agree to it, this simply cannot be done," he added.

"It seems like the constitutional principle of the division of powers has been gravely breached," the judge added.

He also regretted that the government failed to order the media regulatory authority, PEMRA from broadcasting the alleged audio leaks. The AGP also joined him in lamenting the lack of action to the extent of PEMRA.

According to the court's written order, further hearings on the case will take place on May 31, for which notices have been issued to the parties involved.

 

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Audio leaks probe: Justice Isa adjourns judicial commission’s proceedings following SC order​

Haseeb Bhatti
May 27, 2023

Senior puisne judge Justice Qazi Faez Isa, the head of a three-member judicial commission formed to probe alleged audio clips leaked on social media, adjourned indefinitely the body’s proceedings on Saturday — a day after a Supreme Court bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial ordered it to do so.

On May 20, the federal government had formed the commission to probe alleged audio leaks that sparked concerns regarding the independence of the judiciary.

Headed by Justice Isa, the commission also includes Balochistan High Court Chief Justice Naeem Akhtar Afghan and Islamabad High Court Chief Justice Aamer Farooq.

On Friday, the Supreme Court had stayed the commission’s proceedings, suspended the government’s May 19 notification of its appointment and also stopped the implementation of the commission’s May 22 order to conduct open hearings and make the findings public.

During the hearing today, Justice Isa cited the apex court’s “judicial order” while adjourning the meeting, following which a written order of the proceedings was issued.

According to the written order, a copy of which is available with Dawn.com, Attorney General for Pakistan Mansoor Usman Awan was asked to read the SC order of the previous day.

He was also asked whether “the inquiry commission has been arrayed as a respondent”, to which he said that in Constitution petitions no.14 and 15/ 2023, the commission was arrayed as respondent no. 2 through its secretary“.

“In view of the aforesaid order, the proceedings of the commission are adjourned,” today’s order read.

The meeting​

At the outset of the hearing, Justice Isa addressed Attorney General for Pakistan (AGP) Mansoor Usman Awan, and said, “Attorney general sahib, I think a court order has been issued. Does anyone [here] have a copy of the court order?”

Subsequently, the AGP provided Justice Isa with a copy of the apex court’s verdict from yesterday and read it out aloud.

“The inquiry commission was not notified before the hearing so how was it stopped from its work?” Justice Isa asked after hearing the verdict.

“Why were you in the courtroom yesterday? Was there a notice [issued] or were you just sitting there [without a notice]?” Justice Isa asked AGP Awan.

The AGP answered, “I was verbally told that ‘you have to appear in court’. I was issued a notice after the hearing.”

Here, Justice Isa remarked, “According to the Supreme Court rules, an order is issued after hearing the respondents. None of the petitioners sent a notice to the commission.

“Implementation of the Supreme Court rules is mandatory. An affidavit regarding the notice is also given to the court.”

The judge noted that none of the petitioners had appeared before the commission today. “A press conference outside [the court] is held but no one appeared before us,” he remarked.

Justice Isa said neither the petitioner, Supreme Court Bar Association President Abid Shahid Zuberi, nor his counsel, Advocate Shoaib Shaheen, “bothered to appear today”.

Addressing the AGP, he asked, “Attorney general sahib, did you not inform the [Supreme] Court that the commission is not probing 209 (Supreme Judicial Council)?”

The apex court judge stated, “The court should have been informed about our order yesterday. Were they not supposed to come and tell what order was passed yesterday?”

Justice Isa, while asking for a copy of the verdict, remarked, “I also [happen to] know a little bit about the Constitution.”

At one point, Justice Isa asked, “Did Shoaib Shaheen say yesterday that whoever’s audio leak emerges, that judge’s matter will go straight to the Supreme Judicial Council?

“Dozens of such complaints come. Should we approve them and send them to the Supreme Judicial Council? Should we destroy someone’s life without knowing the authenticity of the audio?”

The judge observed that the matter of who recorded the audio was of secondary concern.

Justice Isa then ordered the AGP to read out aloud the oath taken by judges.

Subsequently, he noted, “It is written in the oath that I will perform my duties according to the Constitution and the law. This inquiry commission had been set up under a law.”

SC restrains commission from probe​

At the hearing of a set of four petitions challenging Justice Isa-led commission in the audio leaks, CJP Bandial said, “I am sorry to say that efforts have been made regrettably, maybe unknowingly, to draw a wedge between the judges of the court.”

While pointing towards Attorney General for Pakistan (AGP) Mansoor Usman Awan, the CJP asked him to convey to the federal government to follow constitutional norms in letter and spirit instead of ignoring Article 175 concerning the superior judiciary.

The top court, later while postponing further proceedings till May 31, issued notices to the respondents including AGP Awan in terms of Order 27-A of the civil procedure code to assist the court.

At the outset of Friday’s hearing, the AGP drew CJP Bandial’s attention towards certain clauses of the notification of appointing the commission and requested the CJP to consider not hearing the matter, rather recuse himself from the bench, leaving the matter to his next in line (Justice Isa).

“We respect you as well as your client, because it is the government of Pakistan but all institutions of the country including the judiciary should be respected and protected,” the CJP observed, also expressing the regrets that the May 9 tragic events also had a silver lining as the vilification campaign against the judiciary receded afterwards.

“It has to take tragedy like May 9 to convince the people that an institution like the judiciary has to be respected,” Justice Bandial remarked.

However, the CJP regretted, the government committed many mistakes while making the Supreme Court (Practice & Procedure) Act, 2023 law in a hurry as even bail and family matters have been put before the three-judge committee.

When the AGP said the matter can be resolved, the CJP regretted that interferences have been made in the administrative matters of the judiciary without any consultation while making the law. The AGP admitted that he was not part of the deliberations for the issuance of the notification for setting up of the commission on audio leaks.

“Either remove the errors from the law or come fully prepared if you want to fight,” the CJP asserted.

Later, an eight-page order of the CJP-led bench referred to the arguments of the counsel for petitioner Abid Shahid Zuberi that cited the note of Justice Mansoor Ali Shah in Justice Isa’s case.

Justice Shah, in his note, had held that the scope of the Investigation for Fair Trial Act, 2013, (IFTA) was restricted to the surveillance and interception of a person who was suspected to be involved in any “terrorist or anti-state activity”.

Otherwise, no other law regulates the fundamental right of privacy of citizens and allows probe into their lives through surveillance and interception, the note stated. In the remaining sphere, the right to privacy is absolute, until law is enacted to regulate it, it added, while emphasising that violation of absolute privacy right makes the inadmissibility of evidence, collected in violation thereof, also absolute.

The AGP reminded Justice Munib Akhtar, who was also part of the bench that heard 2021 case of Justice Isa, cited Justice Shah’s note a ‘minority view’.

The CJP-led bench order noted that the alleged audios were all leaks by a so-called “black hat hacker” operating under the Twitter handle “indibell”. The first and primary question was the very veracity, credibility and legality of and authorisation for the alleged audios and the identity of the person or “hacker” engaged in or abetting in such acts, it emphasised.

Referring to AGP’s request to the CJP to recuse from the bench, the order explained that the contention was repelled for the reason that it was an accepted and settled constitutional principle, acted upon several times in the constitution of commissions that CJP’s permission had to be sought whenever a sitting judge was intended to be made a member. Since this power was peculiar to CJP office, the incumbent for the time being of the same could neither divest himself nor be divested by the federal government from discharging the constitutional duty.

While dealing with the judiciary, the government should “deal with proper quarters,” the CJP reiterated.

The order said the federal government appeared to have acted unilaterally in this matter and thus the constitutional principle of the highest importance had been, prima facie, breached.

Even though the other two commission members are chief justices of high courts, the subject matter of the reference transcends any particular high court and involves at the very least a sitting judge of the SC and a chief justice of a third high court. Therefore, keeping in mind the settled principles of federalism, prima facie, the constitutional principle would apply even in regard to the other two members of the commission and therefore, the CJP’s permission was required for their appointment, according to the SC order.

“Prima facie, therefore, the very constitution of the commission is cast in doubt,” the bench feared.

 

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Justice Isa questions SC suspending audio leaks probe​

Audio leaks commission adjourns hearing in view of SC stay order

Correspondent
May 27, 2023

ISLAMABAD: Reacting to the stay order issued by the Supreme Court on the proceedings of the audio-leaks inquiry commission, Justice Qazi Faez Isa questioned on Saturday why the Attorney General of Pakistan (AGP) did not specif
y to the apex court that the contentions it has raised have already been clarified?
Justice Isa, who was appointed head of the three-member audio leaks commission notified by the federal government on May 20, observed that neither him nor his legal team was notified of the SC hearing that took place a day prior. Neither were the two other members of the commission present, he added.

 

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Audio leaks case: Justice Isa-led commission objects to larger bench as SC adjourns hearing till next week​

CJP Bandial says apex court will hear AGP's arguments on government's plea against bench.