Five-judge bench stays proceedings of inquiry commission n Chief Justice Umar Ata Bandial notes role of investigative agencies is given to judicial commission n Says it seems there are some errors in notification.

 

ISLAMABAD    -    The Supreme Court of Pakistan Fri­day suspended the operation of the notification for the constitution of an Inquiry Commission to probe audio leaks involving senior serving and retired judges till May 31.

A five-member bench of the apex court 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 conducted hearing of the peti­tions of Pakistan Tehrik-e-Insaf (PTI) Chairman Imran Khan, President Su­preme Court Bar Association (SCBA) Abid Shahid Zuberi, SCBA Secretary General Muqtedir Akhtar Shabbir and advocate Riaz Hanif Rahi. 

The court stayed the proceedings of inquiry commission, comprising Justice Qazi Faez Isa, senior puisne judge Supreme Court, Chief Justice High Court of Balochistan Naeem Akhtar Afghan and Chief Justice Is­lamabad High Court Aamer Farooq, which were slated on May 27 (today). 

The federal government on May 20 had set up the Commission in exercise of its power under Section 3 of the Pa­kistan Commissions of the Inquiry Act, 2017, to inquire into the veraci­ty of the wide circulations of audio in the media and social media. The no­tices were also issued to the respon­dents and the Attorney General for Pakistan in terms of Order XX­VIIA of the Civil Procedure Code. The court order says; “… till the next date of hearing (May 31), 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 SC turned down Attorney General for Pakistan’s (AGP) re­quest that Chief Justice of Paki­stan Umar Ata Bandial recuse from the bench. Onset of the proceeding, AGP Mansoor Us­man Awan, coming on the ros­ter, referring SRO VI said: “I re­quest with humility that the CJP ought to consider not to hear this matter, and judge next in line hear these petitions.”

The Court order said that the contention was repelled, inter alia, for the reason that it was an accepted and settled constitu­tional principle, acted upon sev­eral times in the constitution of Commissions whenever a sitting judge was intended to be made a member thereof, that the per­mission of the Chief Justice of Pa­kistan had first to be sought.

It further said; “Since this power was peculiar to the said 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.” “Inasmuch as the federal government ap­peared to have acted unilater­ally in this matter, a constitu­tional principle of the highest importance had been, prima fa­cie, breached.”

The apex court noted; “that even though the other two mem­bers of the Commission are Chief Justices of respective High Courts, the subject matter of the refer­ence transcends any particular High Court and involves at the very least a sitting Judge of the Supreme Court and a Chief Jus­tice of a third High Court. There­fore, keeping in mind the settled principles of federalism, prima facie, the aforementioned con­stitutional principle would apply even in regard to the other two members of the Commission and therefore, the permission of the Hon’ble Chief Justice of Pakistan was required for their appoint­ment.” “Prima facie, therefore, the very constitution of the Commis­sion is cast in doubt,” it added.

During the hearing, the Chief Justice said that there seems be some error in the notification, as it has overlapped Article 209 of the Constitution under that Su­preme Judicial Council (SJC) see conduct of judge (against who reference is filed). The CJP stated that it has violated trichotomy of power, adding the role of investi­gative agencies is given to the ju­dicial commission.

Justice Bandial further said the Court takes Article 175(3) of the constitution seriously and cannot ignore the principles laid down in Sharaf Afridi case 33 years ago for the independence of judicia­ry. He added, “We don’t have co­ercive authority, but render jus­tice after hearing the parties.” He said for inquiry commission on ‘dharna’ three notifications for the nomination of judges with­out the consultation of the chief justice were issued, those were withdrawn.

The CJ said that under Arti­cle 175(3) the judiciary shall be separated progressively from the executive. The government must show the respect towards the judiciary. He added, “I am sorry to say this that an effort had been made regrettably and unknowingly ‘to draw wedge between the judges’”.

At that point, the attorney general informed the bench that in petitions against Supreme Court (Practice and Procedure) Act case and in CP-5 on Punjab elections, he had requested the bench to constitute full court, but that was not considered.

The Chief Justice said that in­stead of responding to the AGP request, said if the government had consulted with him then he might have given better advice. He said they would not tolerate interference in their (judiciary) domain. The CJP told attorney general that they respect his cli­ent as they are the Government of Pakistan. He said the judicia­ry benefitted from 9th May in­cidents as a few statements are issued against the Court. The is­sue is not of ‘ego’ but of the con­stitution, the CJP added.

Justice Bandial said the apex court in Benazir Bhutto and Justice Qazi Faez cases had set rules for surveillance, that it could be done after getting per­mission from the Court.

Advocate Shoaib Shaheen, representing SCBA President Abid Shahid Zuberi, briefed the bench on what dates audios were leaked, and explained about the punishment for ille­gal tapping under various laws. He said the commission does not say who made the audios, and instead of probing and tak­ing action against those who had released the audios, the commission issued notices and presumed that the audios are authentic.

Justice Munib said that the federal government has not shown whether the audios are authentic and in accordance with law. He said that the fed­eral government has used sug­ar coated words in the notifi­cation to encroach upon the Supreme Judicial Council (SJC) proceeding. The notification is violation of Article 14 of the Constitution which talk about dignity of man and thus mat­ter of independence of judicia­ry, he added.