ISLAMABAD: As the Supreme Court takes up on Tuesday (today) different challenges to the constitution of a commission led by Justice Qazi Faez Isa to probe audio leaks, one of the petitioners, Abid Zuberi, furnished a number of orders of different high courts with a request that these documents be considered for “proper adjudication” of the present case.

Headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, a five-judge Supreme Court bench will take up a set of four petitions challenging the constitution of the audio leaks commission.

On May 26, the five-judge bench stayed the proceedings of the government-appointed three-judge commission to probe the veracity of alleged audio leaks. Subsequently, on May 27, the audio commission postponed its proceedings until the outcome of the top court hearing.

The petitions were moved by Supreme Court Bar Association (SCBA) President Abid Zuberi, SCBA Secretary Muqtedir Akhtar Shabbir, PTI Chairman Imran Khan, and Advocate Riaz Hanif Rahi. All of them requested the court to declare the constitution of the audio commission illegal.

Court says it expects political parties to reach consensus on election date

In the fresh application, Mr Zuberi through his counsel Shoaib Shaheen furnished an order by the Islamabad High Court (IHC) issued on Dec 22, 2021, in which the court had held that no news channel has the right to air or broadcast any audio or video clip which has not been directly recorded by the channel or journalist themselves without prior permission of the subject of the audio or video clip and that “spy information” should not be treated as news item, especially when it affects right to privacy.

Likewise, another document contained a Supreme Court judgement passed on April 5, 2022, to bring it on record that the apex court had refused to entertain an appeal against the aforementioned IHC order.

Similarly, the petitioner also furnished another IHC order passed on May 31, 2023, in which the court had suspended the summons issued by a special committee constituted by the National Assembly speaker to audit, inquire and investigate audio leaks allegedly involving Najam Saqib, son of ex-CJP Saqib Nisar.

In the order, Justice Babar Sattar had appointed Barrister Aitzaz Ahsan, Makhdoom Ali Khan, Mian Raza Rabbani, and Mohsin Shahnawaz Ranjha as amici to assist the court. The high court had also wondered about any legal framework for recording the telephonic conversations between citizens. The court had also highlighted the need of identifying the legal mechanism for the grant of permission authorising the recording of telephone conversations between citizens and the safeguards adopted to ensure that to the extent that any phone calls were permitted by law to be recorded their confidentiality was preserved and any such recording was not leaked or used for extraneous purposes.

One of the documents furnished by the petitioner before the Supreme Court was a Lahore High Court ruling passed on June 2, 2023, wherein the court held that any audio or video in the absence of its source cannot be taken as a piece of evidence.

At the last hearing on May 31, the Supreme Court adjourned the case till today after the federal government requested the reconstitution of the bench hearing the case. The government had asked CJP Bandial, Justice Ijazul Ahsan, and Justice Munib Akhtar to recuse from themselves from the bench.

Later on, Justice Isa-led commission also questioned the court proceedings since it has not been determined by a three-man committee of judges as required under the Supreme Court (Practice and Procedure) Act 2023, which required that every appeal or case should be heard by a bench constituted by the committee of judges, comprising the CJP and two most senior judges.

Since the petitions challenging the audio commission were not fixed before the bench constituted by the committee of judges, therefore these petitions cannot be heard till the committee determines which bench should hear them.

Meanwhile, the Supreme Court issued its order on a petition regarding simultaneous elections in the country. “The political issues can best be addressed through dialogue and consensus,” the order stated. The order said that the court expected the political parties to heal the polarisation and to arrive at a single date for holding the general elections to all the assemblies.

Published in Dawn, June 6th, 2023

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