Chief Justice of Pakistan (CJP) Justice Qazi Faez Isa on Wednesday asked if the Election Commission of Pakistan (ECP) was sincere with the country as the Supreme Court took up a set of petitions against the Feb 6, 2019 judgement in the Faizabad dharna case.

A three-member Supreme Court bench comprising the CJP, Justice Aminuddin Khan and Justice Athar Minallah heard challenges to the ruling pertaining to the Faizabad sit-in.

Authored by Justice Isa years before he took oath as the chief justice, the searing judgement had instructed the defence ministry and the tri-services chiefs to penalise personnel under their command who were found to have violated their oath.

It had also directed the federal government to monitor those advocating hate, extremism and terrorism and prosecute them in accordance with the law.

Adverse observations were also made against several government departments for causing inconvenience to the public as the 20-day sit-in paralysed life in both Islamabad and Rawalpindi.

Pleas were subsequently moved against the verdict by the Ministry of Defence, the Intelligence Bureau, the PTI, Pemra, the Election Commission of Pakistan (ECP), the Mutta­hida Qaumi Movement (MQM), Rashid and Ijazul Haq.

However, most of the petitioners — including the government, IB, Pemra and PTI — withdrew their pleas, prompting the CJP to ask “why is everyone so afraid to speak the truth”.

At the last hearing, the SC had sought fresh disclosures from anyone regarding the protest by a religious group that had brought the capital and the garrison city to a grinding halt for 20 days.

Justice Isa had said anybody who was affected by the protest, could approach the apex court to submit affidavits revealing new information but in writing.

In response, former Pakistan Electronic Media Regulatory Authority (Pemra) chairman Absar Alam submitted a statement in the SC a day earlier wherein he pointed fingers at a former head and officers of an intelligence agency for “manipulation” of TV news channels and explained the dire consequences of not acceding to their instructions.

He claimed that then ISI Director General Major General Faiz and/or his subordinates controlled the policies of TV channels through unlawful means by changing their numbers and moving them to the tail end of cable networks if they refused to follow the instructions.

Today, the bench heard arguments from Attorney General for Pakistan (AGP) Mansoor Usman Awan, Absar Alam, the Election Commission of Pakistan and Pemra.

In an order announced later in the day, the court dismissed review pleas filed by the IB, PTI, the defence ministry, MQM and Ijazul Haq on grounds of withdrawal. It also issued notices to Sheikh Rashid over failure to appear in court and adjourned the hearing till Nov 15.

Absar Alam’s revelations

During the hearing today, Justice Isa said he had some questions regarding Alam’s note submitted to the SC yesterday. “You said there are some rebellious elements in the media,” he said.

Alam responded that “people of intelligence agencies” used to reach out to cable operators. “A Pemra member had received a call which was recorded,” he said.

When asked about the name of the caller, Alam said he could not confirm it because people often called with fake identities. He went on to say that there were petitions against him in three high courts.

“I was removed as Pemra chairman by the Lahore High Court on Dec 18. You said to bring the truth and so I did,” Alam said. “It was known among journalists that whoever filed a petition against me in the LHC is a person of the agencies,” he said.

Alam further recalled that he was given verbal orders to sack Najam Sethi after the latter revealed on a talk show that institutional corruption was taking place. “I was removed for this reason,” he added.

Alam also said that he had written a letter to the ex-army chief after he had received a call.

“If I were the prime minister at that time, I would have held an inquiry or told Pemra to take action,” the CJP said here.

At one point, Justice Minallah mentioned that the incumbent Pemra chief said there was no pressure on him, to which Alam said Baig was a “fortunate person”.

“If tomorrow the government forms a commission, will you record your statement?” Justice Isa asked. Alam swore that he would take all the names before the commission.

Meanwhile, the chief justice said the committee should also call those who were accused and give them a chance for cross-examination.

SC rejects govt’s fact-finding panel

At the outset of the hearing, AGP Awan read out the order of the previous hearing.

Referring to Alan’s note, CJP Isa noted that the former Pemra chairman had levelled “serious allegations” on the defence ministry and inquired if the government still wanted to withdraw its review petition.

“If Absar Alam’s accusations are true, then this matter is linked to you,” he told the AGP.

For his part, Awan said a fact-finding committee had been constituted on Oct 19 and then read out the notification regarding the same. The three-member committee is responsible for ensuring compliance with directions included in the 2019 judgement.

On Justice Isa’s question regarding who the committee would report to, the AGP said it would submit the findings to the defence ministry. “The report will then be presented in the SC,” he added.

However, the chief justice highlighted that the exercise was an “eyewash” and the “real thing” was missing from it. “When everyone is withdrawing their review petitions, the terms of reference of the committee are synonymous to dust in the eyes.”

At one point, Justice Minallah asked whether what was happening in the country today was as per the Constitution while CJP Isa said the government was not qualified to handle the matter.

“A person is imported from abroad and he paralyses the entire country,” the top judge remarked.

He further stated that the court wanted to know who was the mastermind of the Faizabad dharna. “You have broadened the TORs so much that everyone will be acquitted,” Justice Isa said, lamenting that losses in billions were incurred but the government does not care.

He also highlighted that the TORs of the fact-finding committee did not mention the exact incident being probed. “Our job is to order and your job is to implement,” the chief justice said.

Meanwhile, Justice Minallah asked who had constituted the committee to which the AGP replied that the federal government had formed it.

“Was the approval of the federal cabinet taken? Was this committee formed under the Inquiry Commission Act?” the judge asked. Here, Justice Isa said that if this was not so, then the notification of the commission was a mere piece of paper.

“This committee too is illegal,” the CJP stated and then asked why the inquiry was not conducted under the Inquiry Commission Act. “Let’s suppose that the committee summons Absar Alam but he doesn’t show up. What will you do then?” he asked.

A committee formed under the Inquiry Commission Act has powers and all institutions are bound to cooperate with it, the chief justice pointed out. “No one will appear before your committee,” he told the AGP.

At that, Awan assured the court that the government would work on the matter.

Justice Minallah emphasised that the supremacy of the Constitution must be ensured at any cost. CJP Isa remarked that when one person gets affected, it makes others mindful of the consequences of doing something wrong.

The chief justice further stressed that the inquiry should also reveal why everyone appealed the 2019 verdict.

“You have an opportunity to get the inquiry done from a person who respects the Constitution,” Justice Minallah said while Justice Isa said it was up to the government to choose whoever they wanted to conduct the probe.

“As per Absar Alam’s statement, all institutions, including the Election Commission of Pakistan (ECP), are not independent,” the CJP said.

“Can someone go to Canada and return to Pakistan after rioting?” Justice Isa asked. It is not clear who the chief justice is referring to, but Canada-based Tahirul Qadri was a central figure in PTI Chairman Imran Khan’s dharna in 2014.

“Is this right only for those who come from Canada? Who brought them? Now that you have returned to Canada, tell us … has the work you came for been completed?

“Islam is the religion of peace, they are also defaming Islam,” the CJP pointed out, adding that there was no place for rioting in Islam.

Here, Justice Minallah said the Faizabad verdict was a “landmark judgment”. On the other hand, the CJP called it a “simple order”, recalling that the government at that time, good or bad, was elected by the public.

The SC bench then rejected the fact-finding committee constituted by the government and directed it to form another committee to probe those responsible for the Faizabad dharna.

For his part, the AGP assured the bench that he would provide details regarding the new committee within two days.

CJP grills incumbent Pemra chairman

Subsequently, the court summoned incumbent Pemra chief Saleem Baig over Alam’s note. When he appeared before the bench, the CJP said Absar Alam had submitted some documents to the SC.

“I have read the report,” Baig replied, adding that Alam had written all that he had witnessed.

“Has this never happened to you?” Justice Minallah asked. “Nothing of this sort happened to me,” the Pemra chief replied.

However, the CJP said Alam’s note had been published in the newspapers. “Take the court proceedings seriously,” he directed.

Baig insisted that he knew nothing about what happened to the former Pemra chairman, recalling that he was appointed six months after Alam left. “Before becoming the Pemra chief, I was a grade 20 principal officer,” he added.

“Are you the head of a dummy institution?” the CJP asked Baig, noting that all the institutions in the country had become a “joke”.

“Tell us one paragraph that Pemra implemented from the 110-page judgment,” Justice Isa said. Rioting and arson, he continued, were not freedom of expression. “Are two TV channels still prohibited in the Cantt area?” the chief justice asked.

Meanwhile, Justice Minallah sought the number of inquiries conducted against cable operators. “You say there is no pressure on you, but whenever people here leave their seats, they say there was a lot of pressure on them,” he remarked.

This is a “common culture”, the judge added.

At one point, the CJP asked Baig about his salary to which the latter said he was paid Rs400,000. “Were you the Pemra chairman when Faizabad dharna was underway?” Justice Isa further inquired, noting that Baig’s name was included in the case.

He then reprimanded the Pemra chief for misrepresenting that he was appointed later and warned that Baig could be charged with contempt of court for failing to implement the verdict.

Justice Isa also asked that if the term of a Pemra chairman lasted four years, how did Baig stay in the post for so long? In his reply, the latter said he was appointed for the second time.

“On whose order did you file the review petition?” the CJP asked Baig, assuring him that the court only wanted to strengthen the authority and find out who was interfering in its affairs.

In response, Baig said Pemra had decided to file the review petition.

“If you don’t respond, we will issue an order. Saleem Baig saheb, may God give you a long life but we have to go there. Be brave and tell us who told you to file a review petition,” Justice Isa said.

He also inquired about Pemra’s approval for the review petition. “It was verbal, not written,” Baig replied. However, the chief justice asked how could a decision be taken verbally and then called Pemra’s law director to the rostrum.

“He [Baig] is not speaking the truth, who told you to file a review?” Justice Isa questioned. But the law director responded that he was unaware of the matter.

“Read the law. Can a decision be taken by Pemra verbally?” he said and then turned to Awan. “AGP saheb, Pemra chairman is saying he doesn’t know about the review petition. Were there some hidden forces that filed the review plea?” the CJP asked.

Justice Isa went on to say that without written notification, there was no existence of Pemra’s review petition. “You are just wasting our time,” he told Baig, adding that none of the previous three governments was pleased during the latter’s tenure as Pemra chief.

The chief justice also highlighted that Baig’s signatures were present on Pemra’s review petition and directed him to take responsibility for his actions.

‘Is ECP sincere with the country?’

When the ECP’s lawyer came to the rostrum, CJP Isa said, “You are an independent institution. Did the ECP file a futile review petition which is now being withdrawn?”

Who was heading the commission during the Faizabad dharna, Justice Minallah inquired. The ECP’s counsel replied Sardar Raza was the chief election commissioner at that time.

CJP Isa noted that the electoral body had submitted an implementation report. While going through it, Justice Isa asked why the ECP had used the word “hafiz” with TLP members. He also noted that the report detailed the actions taken by the commission before the Faizabad verdict was issued and sought details of the measures taken after it.

At one point, the chief justice said that there was not a single round figure in the funding received by the Tehreek-i-Labbaik Pakistan. “It appears that these funds came from abroad, but there is no round figure of [the funds] after currency exchange,” he noted.

The ECP lawyer subsequently asked for time to overview the matter.

Justice Isa asked what should be done if the commission did not implement the SC verdict. However, the electoral body’s counsel said he couldn’t say that the ECP would not implement the order.

Here, the AGP said the ECP understands that it is a constitutional institution.

“This is a strange coincidence that constitutional institutions filed review petitions on the same day,” the CJP remarked, to which Awan said that the fact these petitions were fixed for hearing after four years was also a “coincidence”.

For his part, the ECP counsel said that except for one, no other donors of the TLP had revealed their identity.

“Has the Election Act been implemented? TLP has not revealed the source of 33 per cent of its income,” the CJP noted, adding that the commission tried to mislead the court. “Is the ECP sincere with the country?”

The electoral body’s counsel replied in the affirmative.

Justice Isa lamented that the country’s institutions were “destroyed in a systematic way”. Addressing the ECP lawyer, he said it seemed as if the former was representing the TLP.

“Now elections are coming and an entire environment has been formed that everyone is on the same page,” the chief justice said.

Justice Minallah also said that the ECP would only be able to conduct transparent polls when it ensures transparency within the institution.

Subsequently, the court granted the election commission one month’s time to prepare and submit a report on the TLP and its funding.

The petitions

The IB’s review petition had urged the court to set aside the adverse observations made against the department, adding that it was a premier civilian intelligence agency which was responsible for state security.

It had contended that the impugned order created a “bad impression” on the public that the IB was involved in unlawful activities and politics, after transgressing constitutional boundaries.

It had said the observations made in the verdict were based on “vague facts” and that during the sit-in, the department was in close contact with the federal and Punjab governments and forewarned them about the plans and intentions of the TLP, with a view to foiling their attempt to storm/lockdown Islamabad.

Meanwhile, In response, the defence ministry had requested the court to set aside the explicit or implicit observations about the armed forces and/or the Inter-Services Intelligence (ISI).

The ministry’s petition had said that a host of factors may affect morale. However, it said, what was fatal was the belief amongst the rank and file that their officers while acting like “self-proclaimed saviours” were violating the fundamental rights of citizens and instead of serving “Pakistan and thus all its citizens”, supporting a “particular political party, faction or politician”.

“…When the source of such remarks is the highest court in the land, it can promote fissiparous tendencies and has the capacity to destroy the ability of the armed forces to act as a cohesive fighting force,” the review petition had argued.

It had further said there was no evidence before the court to suggest that the armed forces or ISI were, in any manner, involved with either the sit-in or a particular outcome of the general elections of 2018 or the abridgement of free speech or intimidation or censorship of the press.

In its petition, the ECP had contended that it had comprehensively applied and enforced the Constitution, law and code of conduct by issuing a letter to the TLP on Aug 16, 2017, asking the party to provide details of its bank account and even had issued notices to it with a warning to cancel its registration.

Meanwhile, the PTI had questioned the mention in the verdict of the 2014 joint sit-in organised by it and the Pakistan Awami Tehreek in Islamabad, and had said the impression one gets from it was that the party conducted an illegal protest for publicity and deliberately made wrong allegations.

The petition contended that the party had nothing to do with the TLP Faizabad sit-in and therefore the remarks should be expunged.

Rashid had approached the court to remove his name from the judgement. In his petition, the AML chief pleaded that if the words concerning him in para-4 of the judgement were not expunged, he would suffer adversely in his life.

Faizabad sit-in

Daily life in Islamabad was disrupted for 20 days (from Oct 2 to Nov 27, 2017) when protesters belonging to religiopolitical parties occupied the Faizabad Interchange which connects Rawalpindi and Islamabad through the Islamabad Expressway and Murree Road, both of which are the busiest roads in the twin cities.

The agitators claimed that during the passage of the Elections Act 2017, the Khatm-i-Nabuwwat oath was deliberately modified as part of a larger conspiracy. The amendment to the oath was deemed a “clerical error” by the government and was subsequently rectified through an act of Parliament.

The government had attempted to negotiate in vain with the protesters to end the sit-in several times. Finally, it launched an operation to disperse the protesters, in which at least six people were killed and scores others injured. After the botched operation, the government decided to call in the army for help.

Negotiations were undertaken with protesters once again, and the government accepted a number of their demands in return for ending the protest. The agreement document bears the signatures of then interior minister Ahsan Iqbal, TLP chief Khadim Hussain Rizvi, and Gen Faiz Hameed among others.