The Supreme Court on Friday suspended the operation of the federal government\u2019s notification on the constitution of a judicial panel \u2014 formed last week to probe audio leaks which have surfaced on social media over the last few months \u2014 and stayed the commission\u2019s proceedings.
\n\u201cIn 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,\u201d the top court said.
\nOn May 19, the government formed a judicial commission, headed by Justice Qazi Faez Isa, under Section 3 of the Pakistan Commission of Inquiry Act 2017.
\nAccording 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 had \u201call 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\u201d under the Criminal Code of Procedure.
\nEarlier in the day, the Pakistan Electronic Media Regulatory Authority (Pemra) sent transcripts of nine alleged audio leaks to the judicial commission for investigation.
\nThe reserved verdict was issued by a five-member bench comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.
\nThe order was passed on a set of petitions moved by Supreme Court Bar Association (SCBA) President Abid Shahid Zuberi, SCBA Secretary Muqtedir Akhtar Shabbir, PTI Chairman Imran Khan and Advocate Riaz Hanif Rahi seeking to declare the constitution of the audio commission illegal.
\nDuring the hearing today, CJP Bandial observed that the formation of the government-appointed judicial commission \u201cinterfered in the judiciary\u2019s internal matters\u201d and noted that there were errors in the notification issued by the government for the formation of the commission.
\n\u201cThe Constitution gives complete freedom to the judiciary,\u201d he remarked. \u201cThe investigation that was supposed to be conducted by the institutions was entrusted to judges.\u201d
\nJustice Bandial further said, \u201cWe have no other structure but the power of morality and justice.\u201d
\nAfter two-hour-long proceedings, the court reserved its verdict on the petitions and said that an appropriate order would be issued today.
\nIt said the proceedings will be taken up again on May 31 (Wednesday).
\nThe hearing
\nBabar Awan appeared on behalf of the PTI chairman while SCBA President Abid Shahid Zuberi and Secretary Muqtedir Akhtar Shabbir were also present alongside Advocate Riaz Hanif Rahi.
\nAt the outset of the proceedings, AGP Awan came to the rostrum and objected to the five-member larger bench hearing the case.
\nAt this, the CJP remarked, \u201cHow can the government select judges of the Supreme Court [to serve] its own purpose?\u201d
\n\u201cAttorney general sahib, this is a matter concerning the judiciary\u2019s independence. Enough is enough attorney general sahib, take a seat,\u201d CJP Bandial said.
\nHe said that the government cannot have judges included in benches \u201cas per its wishes\u201d. 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.
\n\u201cDon\u2019t interfere with our administrative powers,\u201d Justice Bandial told the AGP. \u201cWe have complete respect for the government,\u201d he said, adding that the judiciary was the protector of basic human rights.
\nJustice Bandial also observed that the government had legislated on regulating the CJP\u2019s powers in haste. \u201cIf 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,\u201d he said.
\nSubsequently, Shoaib Shaheen \u2014 the SCBA president\u2019s lawyer \u2014 started presenting his arguments, citing previous top court verdicts in similar cases.
\n\u201cThe chief justice\u2019s 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,\u201d he said.
\nAt that, the attorney general said, \u201cClarification on the matter can be given.\u201d
\nCJP Bandial observed, \u201cThe federal government should take care of the quarters in the affairs of the judiciary. The government itself suggested judges for the inquiry commission.
\n\u201cBefore this, the government had suggested judges in three notifications, which were later withdrawn,\u201d he recalled.
\nFor his part, AGP Awan told the court that the Act 2017 had not been challenged to which the top judge replied, \u201cThe 1956 Act speaks of respecting the Constitution. The justices will come to this point later.\u201d
\nThe attorney general said he was ready to present arguments on the matter right now. However, the CJP interjected and said: \u201cThe federal government is requested to respect the Constitution. Take action according to the traditions while respecting the Constitution.\u201d
\nThe top justice further said that the \u201cgovernment tried to create differences between the judges\u201d.
\nHe 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.
\nJustice 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. \u201cIn this case, the question of the freedom of courts also exists.\u201d
\nAdvocate Shaheen agreed. \u201cThe question of who tapped the audios is nowhere written in the code of the inquiry commission,\u201d he highlighted.
\nThe lawyer went on to say that the government was giving the impression that the act of phone tapping was acceptable. \u201cThe government should clarify that none of its agencies were involved in tapping phones.\u201d
\nHere, CJP Bandial said the Benazir Bhutto government case was present with regard to phone tapping. \u201cRules were also set in Justice Qazi Faez Isa\u2019s case,\u201d he pointed out.
\n\u201cBut who will determine which judge violated the code of conduct?\u201d he asked.
\nShaheen responded that under Article 209 of the Constitution, \u201cthese power lie under the Supreme Judicial Council\u201d. However, the lawyer pointed out that in the current scenario, the authority of the SJC had been given to the inquiry commission.
\nAt one point during the hearing, the CJP said, \u201cAudio leaks were accepted as correct on mere assumptions.\u201d
\nMeanwhile, 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.
\n\u201cThere was no implementation of a legal procedure,\u201d he lamented.
\n\u201cYou say the formation of the judicial commission is a violation of Article 209,\u201d 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.
\nAt that, Justice Akhtar said Article 209 allowed the executives to send a presidential reference to the SJC. \u201cPrima facie, the federal government has committed misconduct by collecting material against the serving judges of the Supreme Court,\u201d he remarked.
\nThe federal government has violated the distribution of power in the Constitution, the judge added.
\nJustice Akhtar also asked how serving SC judges could willingly become a member of the commission. \u201cWith 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.
\n\u201cEfforts are underway to give cover by using sweet words,\u201d he said, highlighting that \u201cthis is a very disturbing situation\u201d.
\nOn the other hand, CJP Bandial said, \u201cThe judicial commission has seemingly done everything in haste.\u201d
\nJustice Akhtar also asked if the government or Pakistan Electronic Media Regulatory Authority (Pemra) had issued directives to prevent the airing of audio leaks.
\n\u201cPemra did not conduct any inquiry into it,\u201d Shaheen replied, adding that the government also did not take any action in this regard.
\nHere, AGP Awan said that he agreed with the court on Pemra\u2019s inaction.
\nConcluding 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.
\n\u201cThere is no law that authorises agencies to tap citizens\u2019 phones and invade privacy,\u201d he contended. \u201cIt 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,\u201d Shaheen added.<\/p>\n","protected":false},"excerpt":{"rendered":"
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