Islamabad High Court (IHC) Chief Justice Athar Minallah on Monday said the judiciary cannot play into the hands of those whose intentions are to build political narratives through audio tapes leaked on social media.
Justice Minallah made those remarks while hearing arguments on the maintainability of a petition seeking the formation of an independent commission to ascertain the authenticity of an alleged audio of former chief justice of Pakistan Saqib Nisar and probe certain events before and after former prime minister Nawaz Sharif's conviction.
In the leaked audio clip, an unidentified individual, allegedly Nisar, can be heard speaking of a collusion to punish Sharif and Mariam in order to bring their political rival Imran Khan into power. The former top judge had branded the audio as "fabricated".
During the hearing today, the chief justice observed that the people who were "affected" by the audio leak "did not show interest in bringing the matter to the court" — an apparent reference to ongoing hearings on PML-N Vice President Maryam and her husband retired captain Mohammad Safdar's appeals against their convictions in the Avenfield reference.
"Anything goes viral on social media. How many can the court order inquiries into?" the high court chief justice questioned.
Justice Minallah said the court cannot risk "opening up of the floodgates" by ordering inquiries into "anything that goes viral on social media", remarking that judicial activism had already caused a lot of damage to the judiciary.
The judge wondered about the identity of those behind the audio leak. "Who has the capability to record the chief justice of Pakistan? Did that person release it or someone sitting in America?"
Addressing one of the petitioners — Sindh High Court Bar Association (SHCBA) President Salahuddin Ahmed — Justice Minallah said, "Tell [the court] how this petition is maintainable. What writ should we issue?"
Ahmed contended that the court's power regarding the enforcement of fundamental rights was very broad and it could exercise this right under Article 199-C of the Constitution.
At this, the chief justice remarked that the court "cannot play into the hands of" political entities trying to build narratives rather than approach the court themselves.
"When they do not approach the court, the court also has to see what their intentions are," he added. "Who released the audiotape and to whom?"
Questioning the maintainability of the plea, the judge remarked: "It is said about me that I have bought some flat. Should we start an inquiry into that as well?"
Upon this, Ahmed argued the problem was that the "real affected parties" did not come forward.
To this, Justice Minallah replied: "Suppose this audio is legitimate, where is the real clip? Tomorrow, anybody will bring a clip and ask for an inquiry."
The court subsequently issued a notice to Attorney General Khalid Jawed Khan to argue on the maintainability of the petition and adjourned the hearing till December 8.
Commission sought to probe audio leak
The petition, filed by SHCBA president Salahuddin Ahmed and member of the Judicial Commission of Pakistan (Sindh) Syed Haider Imam Rizvi, had requested the IHC to appoint an independent commission comprising members or retired judges of superior judiciary, legal professionals, journalists and civil society members to undertake "a comprehensive inquiry" to ascertain authenticity or otherwise of the "audio recording purported to be of former Chief Justice Saqib Nisar".
The petitioners had urged the court to empower that commission to also probe the events/allegations hurled at the judiciary prior to and after the conviction of the Sharif family. According to the petition, "series of events that have taken place tend to erode the credibility, reputation and independence of the judiciary in the eyes of the people.".
The petition mentioned that all the events undermined public confidence in the judiciary and damaged its reputation for independence and neutrality in the eyes of the general public which ultimately impinge access to justice. "While various aspects of the aforementioned events are sub-judice before various courts, the underlying question of the truth or falsity of the allegations of outside interference with judicial functions and, in particular, the audio recording of former CJP Saqib Nisar is yet to be considered at any judicial forum," it stated.