A five-member larger bench of the Supreme Court (SC) will take up four petitions challenging the constitution of a government-appointed judicial commission — formed last week to probe audio leaks leaked on social media over the last few months — tomorrow (Friday) at 11am.
The commission, headed by Justice Qazi Faez Isa, was formed on May 20 under Section 3 of the Pakistan Commission of Inquiry Act 2017 and is required to conclude the task within a month.
Balochistan High Court Chief Justice Naeem Akhtar Afghan and Islamabad High Court Chief Justice Aamer Farooq are also included in the commission which will have “all the power to fix responsibility against the delinquents for their alleged role behind phone tapping and could exercise authority to constitute special teams consisting of experts, or form an international team and seek international cooperation or exercise powers” under the Criminal Code of Procedure.
Earlier this week, the government-appointed commission conducted its maiden session in which it decided to make its proceedings public to ensure transparency and openness. The next session will be held on May 27.
According to the roster issued by the SC registrar on Thursday, the five-member bench will comprise Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi, and Justice Shahid Waheed.
The cause list issued today showed that four petitions have been filed under Article 184(3) of the Constitution by Advocate Abid Shah Zuberi, Muqtedir Akhtar Shabbir, PTI Chairman Imran Khan, and Advocate Riaz Hanif.
Article 184(3) of the Constitution sets out the SC’s original jurisdiction and enables it to assume jurisdiction in matters involving a question of “public importance” with reference to the “enforcement of any of the fundamental rights” of Pakistan’s citizens.
The petition filed by the PTI chief, a copy of which is available with Dawn.com, alleged that the “self-styled” terms of reference (ToR) were politically motivated and aimed at affecting the independence of the judiciary.
The petition, filed by Advocate Babar Awan, contended that the act of constituting the commission and its notification amounted to a confession by the sitting regime that under their nose by phone tapping, fundamental rights as given under Articles 4, 9, and 19 were violated.
The petition highlighted the need for constituting a judicial commission to enforce the right to life, including the inviolability of dignity of man, equality before the law, protection of life to probe extra-judicial killings, alleged ruthless arrests, custodial tortures and deaths of common citizens/peaceful protestors and others, uploading of audios and videos of custodial torture, protection of women, girls, and boys, inviolability of privacy of home, inviolability of safeguards as to arrests and detentions, freedom of movement, assembly, speech, and the press.
The petition argued that the ToR of the commission suffered from a deliberate omission and they have failed to take into account the issue that who was behind unlawful and unconstitutional surveillance of the Prime Minister’s Office and sitting judges of the Supreme Court.
The petition requested the apex court to determine the effect of the formation of the commission by the federal government on their own without taking into consideration the provisions of Article 175(3) of the Constitution and without the sanction of the chief justice of Pakistan.
According to an SRO issued on May 19, 2023, the controversial audio leaks regarding judiciary and former chief justices raised serious apprehensions about the independence, impartiality and uprightness of CJPs and judges of the superior courts in the administration of justice.
“Such audio leaks have eroded public trust besides serious concerns have been raised by the general public regarding the independence, impartiality and uprightness of the CJPs and judges of the superior courts,” the notification said, adding that judiciary was one of the main pillars under the Constitution and the society’s confidence was shattered when the independence of judiciary was tarnished.
“Therefore it is imperative to [hold] inquiry into the authenticity, correctness and veracity of these audio leaks to restore not just the credibility of the judiciary but also the public trust and confidence in the judiciary in the larger public interest, as a matter of definite public importance,” explained the SRO.
In response to a question, an insider told Dawn that Chief Justice Umar Ata Bandial was not consulted before the constitution of the commission — a common practice — as some of the leaks reportedly concerned his family members. Therefore, the CJP was “conflicted”; this was the reason he was not “requested to suggest names of judges to become members of the commission”.
According to the ToR, the commission will probe the authenticity of the audio leaks purportedly concerning the judiciary, a call between ex-CM Parvez Elahi and a lawyer regarding a Supreme Court judge; between Mr Elahi and lawyer Abid Zuberi regarding fixation of some cases before a particular SC bench; between Mr Elahi and an SC judge; between ex-CJP Saqib Nisar and lawyer Khawaja Tariq Rahim; between lawyer Tariq Rahim and journalist Abdul Qayyum Siddiqui on the outcome of a case pertaining to Imran Khan’s arrest on May 9; between Mr Khan and his party member about their links in the SC; between the mother-in-law of a top judge and wife of a lawyer regarding cases in SC; between the son of ex-CJP and his friend discussing the role of the ex-CJP in the award of the election ticket for a political party.
The commission will also inquire into the correctness of the allegations surfacing on print and electronic media and social media allegedly regarding the son-in-law (Ali Afzal Sahi) of the Lahore High Court CJ, allegedly influencing judicial proceedings before the LHC.
The commission will also determine violation, if any, of integrity or the process of administration of justice, independence of the judiciary, right to fair trial and equality of citizens, to determine the liability incurred by any or all persons named in the alleged audio leaks against or any other person or public office holders including under the Pakistan Penal Code, 1860 or any other law, to determine as to whether any disciplinary proceedings are attracted.
The commission will also be empowered to fix the responsibility of any person or public office holder aiding and abetting by any act in violation of the laws of Pakistan so determined, to recommend any necessary legal action by any agency, department or person etc. If these audio leaks proved to be fake or fabricated, the commission will inquire into and fix responsibility with regards to who is making these and recommend action to be taken in this regard, it added.
According to the TORs, it will be the duty of all executive authorities in the federal [government] and the provinces to aid the commission and comply with any of its directions.
The commission will be entitled to establish a secretariat and appoint a secretary for the inquiry at the cost of the federal government whereas the attorney general for Pakistan will assist the commission by providing all documents and material required by it.
The commission will initiate the inquiry immediately after the notification of its constitution and will conclude the investigation and submit its report to the federal government within 30 days which can be extended.