Web Desk
The Supreme Court of Pakistan, headed by Chief Justice Umar Ata Bandial, issued a stay order on Friday, halting the proceedings of a judicial commission formed to investigate recent audio leaks allegedly involving politicians and judges. The court also suspended the government’s May 19 notification appointing the commission and halted the implementation of the May 22 order by Justice Qazi Faez Isa-led commission, which called for open hearings and the public disclosure of findings.
The commission, scheduled to resume proceedings, will now consider its course of action in light of the restraining order from the five-judge bench led by Chief Justice Bandial.
On May 19, the government issued a notification appointing the judicial commission, which included the chief justices of the Balochistan and Islamabad high courts, Naeem Akhtar Afghan and Aamer Farooq, respectively, under the Pakistan Commission of Inquiry Act, 2017.
During the hearing of four petitions challenging the Justice Isa-led commission on the audio leaks, Chief Justice Bandial expressed regret over attempts, possibly unknowing, to create divisions among the judges. He directed the Attorney General for Pakistan, Mansoor Usman Awan, to convey to the federal government the importance of following constitutional norms, particularly Article 175 concerning the superior judiciary.
The court postponed further proceedings until May 31 and issued notices to the respondents, including the Attorney General, to assist the court.
At the beginning of the hearing, the Attorney General drew Chief Justice Bandial’s attention to certain clauses in the notification appointing the commission and requested that the Chief Justice not hear the matter and instead recuse himself, leaving it to the next in line, Justice Isa.
The Chief Justice acknowledged respect for the government but emphasized the need to respect and protect all institutions, including the judiciary. He expressed regret that it took a tragedy like the events of May 9 to remind people to respect institutions like the judiciary.
The Chief Justice further criticized the government for rushing the Supreme Court (Practice & Procedure) Act, 2023, into law, pointing out errors and interference in administrative matters of the judiciary without proper consultation. The Attorney General admitted that he was not part of the deliberations for issuing the notification to establish the commission on audio leaks.
The eight-page order of the Chief Justice-led bench referred to the arguments of petitioner Abid Shahid Zuberi’s counsel, citing a note by Justice Mansoor Ali Shah in the Justice Isa case. The note highlighted that the scope of the Investigation for Fair Trial Act, 2013, was limited to surveillance and interception of individuals suspected of involvement in “terrorist or anti-state activity.” It emphasized that, in all other areas, the right to privacy is absolute until a law is enacted to regulate it.
The government considered Justice Shah’s note a minority view. The bench order noted that the alleged audio leaks were carried out by a self-proclaimed “black hat hacker” operating under the Twitter handle “indibell.” The primary question was the veracity, credibility, legality, authorization, and identity of the person involved in the alleged audios.
Regarding the request for Chief Justice Bandial to recuse from the bench, the order explained that the contention was rejected because it was a well-established constitutional principle that the Chief Justice’s permission must be sought when appointing a sitting judge as a commission member. The order stated that the federal government appeared to have acted unilaterally, potentially breaching a constitutional principle of the highest importance.
Considering the involvement of a Supreme Court judge and a chief justice of a high court, the constitutional principle would apply even to the other two members of the commission, necessitating the Chief Justice’s permission for their appointment. The court expressed doubts about the constitutionality of the commission.
In dealing with the judiciary, the government was urged to engage with the appropriate authorities, and the court emphasized the importance of upholding constitutional principles.
