ISLAMABAD: A Supreme Court bench, headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, on Friday stayed the proceedings of a judicial commission formed to investigate the veracity of recent audio leaks, allegedly related to politicians and judges, and suspended the government’s May 19 notification of its appointment.

The SC bench also stopped implementation of the May 22 order by Justice Qazi Faez Isa-led three-judge commission to conduct open hearings and make the findings public.

Scheduled to resume proceedings on Saturday (today), the commission may consider what line of action to adopt in view of the restraining order of the CJP-led bench comprising five judges.

On May 19, the government issued notification of appointing the judicial commission — also comprising Balochistan and Islamabad high court chief justices Naeem Akhtar Afghan and Aamer Farooq, respectively — under Section 3 of the Pakistan Commission of Inquiry Act, 2017.

CJP-headed bench suspends govt’s May 19 notification; stops judicial panel from making findings public

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, may be 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 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 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.

Published in Dawn, May 27th, 2023