ISLAMABAD: The Supreme Court of Pakistan on Friday suspended the operation of the federal government’s notification on the constitution of a judicial panel — formed last week to probe audio leaks which have surfaced on social media over the last few months — and stayed the commission’s proceedings.
“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,” the top court said.
It also suspended the federal government's notification on the commission's constitution.
The order was issued by a five-member SC bench headed by Chief Justice of Pakistan Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.
The bench issued the order while hearing separate petitions filed by Supreme Court Bar Association (SCBA) President Abid Shahid Zuberi, SCBA Secretary Muqtedir Akhtar Shabbir, Pakistan Tehreek-e-Insaf (PTI) Chairman and former prime minister Imran Khan and Advocate Riaz Hanif Rahi requesting to declare the commission's formation illegal. Federal of Pakistan through Secretary, Cabinet Division, Islamabad and others have been made respondents in the petitions.
The order noted that the SCBA president's lawyer pointed out the commission had already started functioning and issued an order on May 22 that its proceedings would be made public. The commission's next meeting was scheduled for May 27.
"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," it stated.
The court has issued notices to the respondents in all petitions. The court has also issued notice to the learned Attorney General for Pakistan Mansoor Usman Awan in terms of Order XXVIIA of the Civil Procedure Code.
On May 19, the federal government formed a judicial commission, headed by Justice Qazi Faez Isa, under Section 3 of the Pakistan Commission of Inquiry Act 2017.
According to it, Balochistan High Court Chief Justice Naeem Akhtar Afghan and Islamabad High Court Chief Justice Aamer Farooq were 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 in the day, the Pakistan Electronic Media Regulatory Authority (PEMRA) sent transcripts of nine alleged audio leaks to the judicial commission for investigation.
During the hearing on Friday, CJP Bandial observed that the formation of the government-appointed judicial commission “interfered in the judiciary’s internal matters” and noted that there were errors in the notification issued by the government for the formation of the commission.
“The Constitution gives complete freedom to the judiciary,” he remarked. “The investigation that was supposed to be conducted by the institutions was entrusted to judges.”
Justice Bandial further said, “We have no other structure but the power of morality and justice.”
At the outset of the proceedings, Attorney General for Pakistan Mansoor Usman Awan came to the rostrum and objected to the five-member larger bench hearing the case.
At this, the CJP remarked, “How can the government select judges of the Supreme Court [to serve] its own purpose?”
“Attorney general sahib, this is a matter concerning the judiciary’s independence. Enough is enough attorney general sahib, take a seat,” CJP Bandial said.
He said that the government cannot have judges included in benches “as per its wishes”. He further said that because of the events of May 9, when violent protests broke out in the country following the arrest of the PTI chief, statements that were critical of the judiciary had stopped.
“Don’t interfere with our administrative powers,” Justice Bandial told the AGP. “We have complete respect for the government,” he said, adding that the judiciary was the protector of basic human rights.
Justice Bandial also observed that the government had legislated on regulating the CJP’s powers in haste. “If the government would have consulted us, we would have shown [you] a better path. You have also made bail and family cases a part of the legislation,” he said.
Subsequently, Shoaib Shaheen — the SCBA president’s lawyer — started presenting his arguments, citing previous top court verdicts in similar cases.
“The chief justice’s consultation is necessary before appointing an incumbent service judge to a commission. Consultation is necessary before appointing any private person to a commission as well because the matter concerns a judicial inquiry,” he said.
At that, the attorney general said, “Clarification on the matter can be given.”
CJP Bandial observed, “The federal government should take care of the quarters in the affairs of the judiciary. The government itself suggested judges for the inquiry commission.
“Before this, the government had suggested judges in three notifications, which were later withdrawn,” he recalled.
For his part, AGP Awan told the court that the Act 2017 had not been challenged to which the top judge replied, “The 1956 Act speaks of respecting the Constitution. The justices will come to this point later.”
The attorney general said he was ready to present arguments on the matter right now. However, the CJP interjected and said: “The federal government is requested to respect the Constitution. Take action according to the traditions while respecting the Constitution.”
The top justice further said that the “government tried to create differences between the judges”.
He asked if the question of who was behind phone tapping was not included in the formation of the judicial commission, stressing that phone tapping was an unconstitutional act.
Justice Akhtar also remarked that tapping telephonic conversations was not just an illegal act but also a violation of human rights under Article 14 of the Constitution. “In this case, the question of the freedom of courts also exists.”
Advocate Shaheen agreed. “The question of who tapped the audios is nowhere written in the code of the inquiry commission,” he highlighted.
The lawyer went on to say that the government was giving the impression that the act of phone tapping was acceptable. “The government should clarify that none of its agencies were involved in tapping phones.”
Here, CJP Bandial said the Benazir Bhutto government case was present with regard to phone tapping. “Rules were also set in Justice Qazi Faez Isa’s case,” he pointed out.
“But who will determine which judge violated the code of conduct?” he asked.
Shaheen responded that under Article 209 of the Constitution, “these power lie under the Supreme Judicial Council”. However, the lawyer pointed out that in the current scenario, the authority of the SJC had been given to the inquiry commission.
At one point during the hearing, the CJP said, “Audio leaks were accepted as correct on mere assumptions.”
Meanwhile, Shaheen recalled that the commission had issued a notice to the general public and asked them to provide any information they may have on the matter to the commission secretary.
“There was no implementation of a legal procedure,” he lamented.
“You say the formation of the judicial commission is a violation of Article 209,” CJP Bandial noted, to which Shaheen said that the SC had previously issued orders in cases pertaining to Justice Isa and former chief justice Iftikhar Chaudhry.
At that, Justice Akhtar said Article 209 allowed the executives to send a presidential reference to the SJC. “Prima facie, the federal government has committed misconduct by collecting material against the serving judges of the Supreme Court,” he remarked.
The federal government has violated the distribution of power in the Constitution, the judge added.
Justice Akhtar also asked how serving SC judges could willingly become a member of the commission. “With the permission of the chief justice, an action against a judge of the higher courts can be taken to any forum other than the judicial council.
“Efforts are underway to give cover by using sweet words,” he said, highlighting that “this is a very disturbing situation”.
On the other hand, CJP Bandial said, “The judicial commission has seemingly done everything in haste.”
Justice Akhtar also asked if the government or Pakistan Electronic Media Regulatory Authority (PEMRA) had issued directives to prevent the airing of audio leaks.
“Pemra did not conduct any inquiry into it,” Shaheen replied, adding that the government also did not take any action in this regard.
Here, AGP Awan said that he agreed with the court on Pemra’s inaction.
Concluding his arguments, Shaheen said bugging and phone tapping were a violation of the privacy of citizens and the Constitution did not allow the act. He recalled that rules were formed through a majority verdict in the Justice Isa case and the surveillance of judges was prohibited.
“There is no law that authorises agencies to tap citizens’ phones and invade privacy,” he contended. “It is the responsibility of a democratic government to prioritise the protection of the fundamental rights of citizens and their privacy in view of the rule of law,” Shaheen added.
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.
After completing the proceedings, the CJ remarked that a short order will be issued.
Both Abid Zuberi and Muqtedir Shabbir filed the petition on Thursday, in which they requested the SC to order the federal government, the inquiry commission, the Pakistan Electronic Media Regulatory Authority and the Pakistan Telecommunication Authority to identify persons or entities operating anonymous Twitter accounts/handles.
They further requested the court to pass directions to fix responsibility for engaging in the unconstitutional practice of illegal phone tapping in the territory of Pakistan.
Likewise, Imran Khan also pleaded in the petition that the commission should probe the “powerful elements” behind the audio leaks. These elements allegedly tapped and recorded telephone conversations of citizens, including high-ranking public functionaries.
The SCBA petitions contend that the government or any person, authority, or functionary, whether identified or anonymous, should not conduct surveillance of citizens through phone tapping, phone interception, or any other similar means, except in accordance with the Investigation for Fair Trial Act, 2013.
The petitions also pray before the apex court to declare that no legal proceedings or penal action, under any law including the Pakistan Commissions of Inquiry Act, 2017, could be taken against any citizen based on alleged audio recordings mentioned in the May 19 notification by any other state body, including regulatory bodies.
The petitions argue that with the advent of modern technology and the popularity of social media, it has become possible to anonymously upload illegally obtained tapped phone conversations or fabricate, distort, manipulate and disseminate such illegal recordings across the populace, anonymously, to cast aspersions against institutions such as the judiciary or to blackmail citizens.
All the audio recordings referred to in the May 19 notification have been disseminated by uploading them on unverified, anonymous social media accounts. It is submitted that such unlawful tactics not only blatantly violate the law and the constitution but also enable those in power to suppress citizens and trample upon their fundamental rights without attracting any liability or leaving any trace.
The petition submits that such conduct cannot be allowed, as it will further erode the fabric of society, respect and dignity of individuals, as well as institutions, and the rights and privileges enjoyed by citizens.
Zuberi argued that any communication between an advocate and his client is protected by legal privilege. Illegally recording legally privileged communications that took place over different periods of time and then doctoring such communications to further a nefarious agenda violates Article 18 of the Constitution and the protections afforded by law.
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.
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 Elahi and lawyer Abid Zuberi regarding fixation of some cases before a particular SC bench; between 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 Imran 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.