Senior puisne judge Justice Qazi Faez Isa, the head of a three-member judicial commission formed to probe alleged audio clips leaked on social media, adjourned indefinitely the body’s proceedings on Saturday — a day after a Supreme Court bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial ordered it to do so.
On May 20, the federal government had formed the commission to probe alleged audio leaks that sparked concerns regarding the independence of the judiciary.
Headed by Justice Isa, the commission also includes Balochistan High Court Chief Justice Naeem Akhtar Afghan and Islamabad High Court Chief Justice Aamer Farooq.
On Friday, the Supreme Court had stayed the commission’s proceedings, suspended the government’s May 19 notification of its appointment and also stopped the implementation of the commission’s May 22 order to conduct open hearings and make the findings public.
During the hearing today, Justice Isa cited the apex court’s “judicial order” while adjourning the meeting, following which a written order of the proceedings was issued.
According to the written order, a copy of which is available with Dawn.com, Attorney General for Pakistan Mansoor Usman Awan was asked to read the SC order of the previous day.
He was also asked whether “the inquiry commission has been arrayed as a respondent”, to which he said that in Constitution petitions no.14 and 15/ 2023, the commission was arrayed as respondent no. 2 through its secretary“.
“In view of the aforesaid order, the proceedings of the commission are adjourned,” today’s order read.
At the outset of the hearing, Justice Isa addressed Attorney General for Pakistan (AGP) Mansoor Usman Awan, and said, “Attorney general sahib, I think a court order has been issued. Does anyone [here] have a copy of the court order?”
Subsequently, the AGP provided Justice Isa with a copy of the apex court’s verdict from yesterday and read it out aloud.
“The inquiry commission was not notified before the hearing so how was it stopped from its work?” Justice Isa asked after hearing the verdict.
“Why were you in the courtroom yesterday? Was there a notice [issued] or were you just sitting there [without a notice]?” Justice Isa asked AGP Awan.
The AGP answered, “I was verbally told that ‘you have to appear in court’. I was issued a notice after the hearing.”
Here, Justice Isa remarked, “According to the Supreme Court rules, an order is issued after hearing the respondents. None of the petitioners sent a notice to the commission.
“Implementation of the Supreme Court rules is mandatory. An affidavit regarding the notice is also given to the court.”
The judge noted that none of the petitioners had appeared before the commission today. “A press conference outside [the court] is held but no one appeared before us,” he remarked.
Justice Isa said neither the petitioner, Supreme Court Bar Association President Abid Shahid Zuberi, nor his counsel, Advocate Shoaib Shaheen, “bothered to appear today”.
Addressing the AGP, he asked, “Attorney general sahib, did you not inform the [Supreme] Court that the commission is not conducting probes [under] Article 209 (Supreme Judicial Council) of the Constitution?”
At one point, Justice Isa asked, “Did Shoaib Shaheen say yesterday that whoever’s audio leak emerges, that judge’s matter will go straight to the Supreme Judicial Council?
“Dozens of such complaints come. Should we approve them and send them to the Supreme Judicial Council? Should we destroy someone’s life without knowing the authenticity of the audio?”
The judge observed that the matter of who recorded the audio was of secondary concern.
Justice Isa then ordered the AGP to read out aloud the oath taken by judges.
Subsequently, he noted, “It is written in the oath that I will perform my duties according to the Constitution and the law. This inquiry commission had been set up under a law.”
He then asked the AGP, “Why didn’t you tell the court yesterday that we have already clarified their objections?”
Addressing AGP Awan, he said, “I am surprised that you did not reject what was said yesterday.” He then ordered the AGP to read out aloud the verdict of the Qazi Faez Isa case, which he did.
Noting that a case pertaining to him was also mentioned during yesterday’s Supreme Court hearing, Justice Isa said, “The grounds of my case were completely different. My wife had not denied owning the properties.
“My wife’s case was this that the person standing in the Supreme Court against us was made to do so by someone,” he further said.
Justice Isa emphasised that if others were deserving of respect, then his family should also be respected.
“Not excessively, but we should at least be granted some respect.”
He then mentioned that the commission was formed under the Commission of Inquiry Act, 1956. “We are servants of God only, not of anyone else,” he said.
The commission head noted it was possible that the body had been tasked with a “difficult responsibility”. “Can we refuse a difficult task under the law and our oath?” he asked.
Justice Isa said, “This responsibility can be a cause of mental suffering for us. I am surprised that the Supreme Court’s order is binding on everyone. I am confused that the Supreme Court’s orders are not applicable to the Supreme Court.”
He added, “The lawyers should also read their code of conduct.”
The justice raised the question if the “privilege of privacy” would be applicable to a conversation in which a lawyer asks his client for a million rupees in the judge’s name.
“The lawyers do not follow their code of conduct. They start teaching us the law,” he added.
Justice Isa then asked, “Why is the truth being stopped from coming forward?”
The judge said, “We had clarified that neither will we affect anyone’s rights nor make anyone the accused.”
Justice Isa then asked where was it written in the Commission of Inquiry Act that the chief justice’s consultation was necessary. “The court has written that the government has taken a unilateral action. The government always works unilaterally,” he noted.
AGP Awan then admitted that the law did not mention taking the chief justice’s advice and that the government worked according to the law.
Here, Justice Isa observed that according to the apex court’s order, an objection was also raised on the inclusion of the chief justices of the Balochistan and Islamabad high courts in the commission.
“It is the requirement of federalism that the provinces are free and independent. Such an observation of the court will destroy federalism,” the justice noted.
He further said that the judiciary has to follow the law and not the Constitutional tradition.
“High courts have never been subordinate to the Supreme Court. The Supreme Court cannot even monitor the district judiciary, let alone the high courts,” Justice Isa observed.
“The Supreme Court can only determine the legal value of the high court’s decisions,” he added.
At one point, he remarked, “I do not understand what has happened to the law profession. The easiest thing is to blame a judge. The judges neither have an army nor police — only ethical authority.”
On the matter of probing the audio leaks, Justice Isa then said, “That stage had not arrived yet, neither were we doing that.” He then asked one of the witnesses, Abdul Qayoom Siddiqui, to come to the rostrum.
Justice Isa asked the witness his name to which he replied, “My name is Abdul Qayyum.”
Justice Isa noted that it was possible that Qayyum had no objection to the proceedings of the committee.
“His second partner has submitted a request stating that he is in Lahore for a medical check-up,” the judge mentioned.
He further stated that the applicant requested that his statement be recorded once the team reaches Lahore.
At one point during the hearing, Justice Isa asked, “If anyone offers me money for a decision of their choice, then will this conversation also be considered [part of] privacy?
“Privacy is always of a home. Someone’s house cannot be peeped into,” he observed.
The justice then asked, “Are the CCTVs fixed on the streets outside also against one’s privacy? If a bank’s CCTV camera captures an incident of murder, can the footage not be used then?”
Here, Justice Isa observed, “Shoaib Shaheen violates the Lawyers Practice and Procedure Act by appearing on television daily.
“He has come to teach us law. No worries, he can teach. We learn the law every day,” he remarked sarcastically.
The justice further said, “On the one hand, he talks about privacy and on the other, he appears on talk shows to discuss his own audio [recordings].”
Noting he could not respond in talk shows, he said, “As a lawyer, this is why we also used to take the order and used to inform the relevant court the next day.”
The apex court judge then proceeded to question AGP Awan about the involvement of a Twitter account in leaking the alleged audio recordings.
“What is this Twitter and what is Twitter handle?” Justice Isa asked the AGP to which he replied that the former was software while the latter was the name under which an account is made on the platform.
“I do not know about the hacker. Maybe someone from the media knows about it,” the AGP added.
At this point during the hearing, Justice Isa observed, “We cannot proceed further. I apologise to the witnesses. We cannot continue the proceedings.
“We will issue the written order for today. Attorney general sahib, we are sorry. The [Supreme] Court’s judicial order has arrived, which is why we cannot continue further work,” the commission head said.
SC restrains commission from probe
At the hearing of a set of four petitions challenging Justice Isa-led commission in the audio leaks, CJP Bandial said, “I am sorry to say that efforts have been made regrettably, maybe unknowingly, to draw a wedge between the judges of the court.”
While pointing towards Attorney General for Pakistan (AGP) Mansoor Usman Awan, the CJP asked him to convey to the federal government to follow constitutional norms in letter and spirit instead of ignoring Article 175 concerning the superior judiciary.
The top court, later while postponing further proceedings till May 31, issued notices to the respondents including AGP Awan in terms of Order 27-A of the civil procedure code to assist the court.
At the outset of Friday’s hearing, the AGP drew CJP Bandial’s attention towards certain clauses of the notification of appointing the commission and requested the CJP to consider not hearing the matter, rather recuse himself from the bench, leaving the matter to his next in line (Justice Isa).
“We respect you as well as your client, because it is the government of Pakistan but all institutions of the country including the judiciary should be respected and protected,” the CJP observed, also expressing the regrets that the May 9 tragic events also had a silver lining as the vilification campaign against the judiciary receded afterwards.
“It has to take tragedy like May 9 to convince the people that an institution like the judiciary has to be respected,” Justice Bandial remarked.
However, the CJP regretted, the government committed many mistakes while making the Supreme Court (Practice & Procedure) Act, 2023 law in a hurry as even bail and family matters have been put before the three-judge committee.
When the AGP said the matter can be resolved, the CJP regretted that interferences have been made in the administrative matters of the judiciary without any consultation while making the law. The AGP admitted that he was not part of the deliberations for the issuance of the notification for setting up of the commission on audio leaks.
“Either remove the errors from the law or come fully prepared if you want to fight,” the CJP asserted.
Later, an eight-page order of the CJP-led bench referred to the arguments of the counsel for petitioner Abid Shahid Zuberi that cited the note of Justice Mansoor Ali Shah in Justice Isa’s case.
Justice Shah, in his note, had held that the scope of the Investigation for Fair Trial Act, 2013, (IFTA) was restricted to the surveillance and interception of a person who was suspected to be involved in any “terrorist or anti-state activity”.
Otherwise, no other law regulates the fundamental right of privacy of citizens and allows probe into their lives through surveillance and interception, the note stated. In the remaining sphere, the right to privacy is absolute, until law is enacted to regulate it, it added, while emphasising that violation of absolute privacy right makes the inadmissibility of evidence, collected in violation thereof, also absolute.
The AGP reminded Justice Munib Akhtar, who was also part of the bench that heard 2021 case of Justice Isa, cited Justice Shah’s note a ‘minority view’.
The CJP-led bench order noted that the alleged audios were all leaks by a so-called “black hat hacker” operating under the Twitter handle “indibell”. The first and primary question was the very veracity, credibility and legality of and authorisation for the alleged audios and the identity of the person or “hacker” engaged in or abetting in such acts, it emphasised.
Referring to AGP’s request to the CJP to recuse from the bench, the order explained that the contention was repelled for the reason that it was an accepted and settled constitutional principle, acted upon several times in the constitution of commissions that CJP’s permission had to be sought whenever a sitting judge was intended to be made a member. Since this power was peculiar to CJP 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.
While dealing with the judiciary, the government should “deal with proper quarters,” the CJP reiterated.
The order said the federal government appeared to have acted unilaterally in this matter and thus the constitutional principle of the highest importance had been, prima facie, breached.
Even though the other two commission members are chief justices of high courts, the subject matter of the reference transcends any particular high court and involves at the very least a sitting judge of the SC and a chief justice of a third high court. Therefore, keeping in mind the settled principles of federalism, prima facie, the constitutional principle would apply even in regard to the other two members of the commission and therefore, the CJP’s permission was required for their appointment, according to the SC order.
“Prima facie, therefore, the very constitution of the commission is cast in doubt,” the bench feared.