In a significant development, the Supreme Court issued an order on Friday, suspending the operation of the federal government’s notification regarding the constitution of a judicial panel, formed last week to investigate audio leaks that have emerged on social media over the past few months.
Additionally, the top court also prohibited the commission from conducting further proceedings.
The decision came after a five-member larger bench heard petitions filed against the government forming a judicial inquiry commission to probe into the audio leaks surrounding the superior judiciary.
Last week, the federal government had formed the judicial commission to probe into over half-a-dozen leaked audio clips allegedly involving some current and former members of the superior judiciary and their family members to determine their “veracity” and “impact on the independence of the judiciary”.
The three-man judicial commission was led by SC senior puisne judge Justice Qazi Faez Isa and comprised Balochistan High Court Chief Justice Naeem Akhtar Afghan and Islamabad High Court Chief Justice Aamer Farooq.
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However, Supreme Court Bar Association (SCBA) President Abid Zuberi filed a petition in the top court against the formation of the commission, arguing that the body was in violation of articles 9, 14, 18, 19, and 25 of the Constitution.
Subsequently, Chief Justice of Pakistan Umar Ata Bandial formed a five-judge larger bench to take up petitions filed against the formation of a judicial inquiry commission probing into the audio leaks allegedly involving current and former members of the superior judiciary and their family members.
Apart from the CJP as the head, the bench included Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.
“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,” a written order of the top court stated.
The issued orders stated that no judge of the apex court can be made a part of the commission without the consent of the chief justice.
The inclusion of high courts’ chief justices in any commission is also subject to the approval of the Chief Justice of Pakistan, it added.
At the outset of the hearing, Attorney General of Pakistan (AGP) Mansoor Awan raised objections over the constitution of the bench. In particular, he objected to the inclusion of the CJ himself in the bench.
“I wish to bring the 6th Amendment to the court’s attention,” he said, which pertains to the retirement of chief justices of SC and high courts.
However, the court proceeded to express its dismay over the government’s decision to proceed with the nomination of judges in the commission probing the audio leaks.
The AGP requested CJP Bandial to recuse from the bench but he refused to do so, saying that the government did not approach the chief justice for nomination of judges for inquiry commission as there were several judgments to support these points.
“The government cannot choose judges of its liking to sit on a bench,” remarked CJ Bandial.
“It is the CJP’s domain to nominate judges for a commission,” remarked CJ Bandial, adding that “it is not necessary that the CJ includes himself in the commission and nor is the CJ bound by the wishes of the government.”
“We respect the government completely,” he stressed, but regretted that it had “rushed through laws to regulate the CJ’s powers”.
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“We had raised an issue [with the government] that Article 184 posits that at least five judges must be included in the bench,” he continued, “had you consulted us, we would have guided you better on this.”
“Respected AGP, this is a matter of the independence of the judiciary,” he exclaimed, questioning “how could the government pick judges to serve its own purposes?”
“I am sorry to say this, but the government has caused a rift between the judges,” responded CJ Bandial.
“Enough is enough,” CJ Bandial said, telling AG Awan to “sit down” and to “request the government to respect the constitutional traditions”.
AG Awan insisted that he could “clarify the issue”, but the CJ told the government to “bear quarters in mind”.
“The government nominated the judges for the inquiry commission itself,” he said, observing that “previously the government had issued three different notifications nominating judges which were later taken back.”
“The 2017 Act has not been challenged,” argued the AGP.
“We will return to this issue later,” responded CJ Bandial. However, AG Awan insisted that he was prepared to argue this point “right away”.
The court maintained its reservations about the constitution of the inquiry position, stating that the move stood in violation of the tracheotomy of powers and was a breach of Article 209.
“This is not an issue of egos,” the CJ said, “we speak of the constitution here”.
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.
According to the court’s written order, further hearings on the case will take place on May 31, for which notices have been issued to the parties involved.