Audio leaks commission: SC, govt at odds with each other — again

ISLAMABAD: The Supreme Court (SC) and the federal government appeared to be on a collision course once again on Friday when the chief justice of Pakistan (CJP) suspended the operation of a judicial commission on audio leaks while the government counsel and the interior minister raised objections over it.

A five-member larger SC bench, headed by Chief Justice Umer Ata Bandial and comprising Justice Ijazul Ahsen, Justice Munib Akhtar, Justice Syed Hassan Azhar Rizvi and Justice Shahid Waheed, announced its verdict on the petitions challenging the government notification issued on May 19.

The bench suspended the operation of the government notification, constituting a commission to probe the veracity of alleged audios leaks, and halted till May 31 the proceedings of the commission.

Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan, Abid S Zubairi, Muqtedir Akhtar Shabbir, president and secretary of Supreme Court Bar Association (SCBA) respectively, and Advocate Riaz Hanif Rai had challenged the federal government’s notification constituting the three-member judicial commission. The federal government had constituted the commission through a notification on May 19, headed by Supreme Court senior judge Justice Qazi Faez Isa and comprising Chief Justice Balochistan High Court Naeem Akhtar Afghan and Chief Justice Islamabad High Court Aamir Farooq to probe the veracity of the recent audio leaks. The commission was scheduled to take up the matter on Saturday (today) in Courtroom No 2.

However, on Friday, the apex court, after hearing the counsel for petitioners and Attorney General for Pakistan (AGP) Mansoor Awan, reserved its judgment and later announced it. “In the circumstances, till the next date of hearing, the operation of the impugned notification No SRO 596(I)/2023 dated 19-5-2023, issued by the federal government, is suspended as is the order dated 22-5-2023, made by the commission and in consequence thereof, proceedings of the Commission are stayed,” says the order authored by Chief Justice of Pakistan (CJP) Umer Ata Bandial.

The court issued notices to all respondents in the petitions besides issuing notice to the AGP for May 31. “Counsel for the petitioner also prayed for interim relief since the commission has already started functioning and has made an order on 22-5-2023 and the next meeting of the commission is scheduled for 27-5-2023,” read the court order. During the hearing, AGP Mansoor Usman requested the CJP to recuse himself from the case and leave the matter to the next senior-most judge. “It is requested that the chief justice should not be a part of this bench,” AGP Awan said.

Responding to the AGP, CJP Bandial said: “You should not interfere with our administrative authority.” The top SC judge added that while he respects the request made by Awan, the post of the chief justice is constitutional.

“I knew you would raise this objection. The judiciary is not subservient to the government. There is a division of authority in the Constitution,” he remarked. The country’s top judge also lamented the government’s “hasty” decision to enact legislation regulating the chief justice’s powers. It, prima facie, appears the government made an attempt to divide the judiciary and create differences among judges. “How can the government use judges for its own motives?” CJP Bandial asked the AGP.

CJP Bandial also questioned the formation of a judicial panel without his consultation. He said that while consulting the chief justice is not mentioned in the Inquiry Commission Act 1956, it is a “practice” for the CJP to nominate a judge for the commission. He observed that it was a practice that the chief justice should be consulted before appointing any serving judge to any judicial panel. “Three such notifications were withdrawn previously when the chief justice was not approached. Five decisions of the Supreme Court also exist in this regard,” the CJP said.

“The contention was repelled, inter alia, for the reason that it was an accepted and settled constitutional principle, acted upon several times in the constitution of commissions whenever a sitting judge was intended to be made a member thereof, that the permission of the chief justice of Pakistan had first to be sought,” the court held. “Inasmuch as the federal government appeared to have acted unilaterally in this matter, a constitutional principle of the highest importance had been, prima facie, breached,” added the court order.

The court noted that even though the other two members of the commission are chief justices of respective high courts, the subject matter of the reference transcends any particular high court and involves at the very least a sitting judge of the Supreme Court and a chief justice of a third high court. “Therefore, keeping in mind the settled principles of federalism, prima facie, the aforementioned constitutional principle would apply even in regard to the other two members of the commission and therefore, the permission of the chief justice of Pakistan was required for their appointment,” the court added.

“Prima facie, therefore, the very constitution of the commission is cast in doubt,” the order added. The court cited different judgments in this regard.

The court noted that the petitioner had challenged Notification No SRO.596(I)/2023 dated 19-5-2023 (impugned notification) issued by the Federal government for appointment of an Inquiry Commission (Commission) in exercise of its power under Section 3 of the Pakistan Commissions of the Inquiry Act, 2017 comprising Justice Qazi Faez Isa, Hon’ble Senior Puisne Judge Supreme Court of Pakistan, Mr Justice Naeem Akhtar Afghan, Chief Justice High Court of Balochistan and Mr Justice Aamer Farooq, Chief Justice Islamabad High Court.” The court noted that terms of reference (ToRs) of the commission, inter alia, are to determine whether certain alleged audios leaked on 16-2-2023 and thereafter subsequently broadcast on the electronic media, involving alleged conversations between persons connected to or including judges of the superior courts, constitute material whereby public trust and confidence in the credibility, uprightness, impartiality and independence of the superior judiciary is eroded.

The court further noted that the essence of the submissions made by Shoaib Shaheen, counsel for the petitioners, are that the impugned notification violates fundamental rights by breaching the principle of separation of powers on the basis of which the constitutional framework of our country is established. “The executive cannot transgress into the area of the judicial function. While Article 209 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution) enables the President of Pakistan (acting on advice i.e. the Executive branch) to present a Reference in respect of any alleged misconduct by a Judge of the superior Courts, the determination and all matters and aspects relating thereto whether directly or indirectly are exclusively vested in the judicial branch, as embodied in the constitutional body known as the Supreme Judicial Council,” says the order.

Thus, the constitutional principle of trichotomy of powers has placed these functions in mutually exclusive zones i.e. the two branches of the Executive and the judiciary. However, in appointing senior sitting judges as the Commission of Inquiry to investigate and enquire upon the matters which are the subject matter of the ToRs of the commission, prima facie, the principle of separation of powers has been breached.

The federal government, in what tentatively appears to be a complete misdirection of law, has thus trenched upon a constitutional domain exclusive to the Judiciary and demarcated exclusively for the latter under Article 209. The ToRs for the commission are specified in the impugned notification in sub-paras (iii) to (ix) of paragraph-6, being the questions upon which the commission is to render its determination.

These questions include in paragraph-6(v) the determination whether any disciplinary proceedings are attracted by virtue of the matters under inquiry. Keeping in view paragraph-6 (viii) which concerns the genuineness and the correctness of the alleged audios leaked, it appears, prima facie, that paragraph-6(v) is addressing judicial misconduct in veiled terms.

This function is reserved by Article 209 of the Constitution to be performed solely by the judiciary through the SJC. In this way, the ToRs of the commission appear to extend its jurisdiction into an area falling within the domain of the SJC at the instance of the Executive which is an arrangement that is, prima facie, unconstitutional and void.

A perusal of paragraph-6(i) and (ii) of the ToRs of the commission setting out the subject matter of enquiry by the commission, prima facie, overlaps or at the very least appears to fall within the penumbra of the constitutional jurisdiction vesting in the SJC under Article 209 of the Constitution. This jurisdiction is an integral component of the independence of the judiciary enunciated, inter alia, in Article 175(3) of the Constitution, which is not only a fundamental right but also a salient feature of the Constitution.

The court further noted that the counsel for the petitioner also emphasised the apparent violation of Article 14 of the Constitution relating to dignity of man and the rights of privacy that are inherent therein. “The counsel submitted that such rights extended not just to the person but also to the communications made by him,” the court noted adding that illegal and unlawful surveillance of such communication or the targeting of any person in this regard was clear-cut violation of the said fundamental rights.

During the course of proceedings, Justice Munib cited a judgment that upheld the absolute right to privacy, but in which he himself had taken a different view. The AGP asked if that was not a minority judgment.

Justice Munib then did not respond to the top law officer’s argument. The court also noted that reference was made to certain laws, including principally, the Investigation for Fair Trial Act, 2013 to show that it is the only law which permits surveillance under strictly limited circumstances in terms of the elaborate regime set out in the Act and only in relation to the offences appearing in the Schedule thereof which relate to terrorism and such like offences.

“Learned counsel read out various sections of the said Act and in particular drew attention to Section 10(2)(b) where even if surveillance for such limited purposes could be lawfully carried out, rights of privacy and property were always to be respected,” says the order. The court further noted that it was submitted that the subject matter of the present proposed inquiry could not conceivably fall within the ambit of the said Act.

“Learned counsel also placed reliance on the judgment of Justice Syed Mansoor Ali Shah (concurring in part) and reported as Justice Qazi Faez Isa and others vs. The President of Pakistan (PLD 2021 SC 1),” says the order adding that various paragraphs in relation to the concept of privacy were read out from this judgment and in particular reliance was strongly placed on the following passage from para-48. While the fundamental right to personal liberty and privacy guaranteed by articles 9 and 14 of the Constitution are subject to law, there is no law in our country that authorises any law enforcement or intelligence agency to pry into the privacy of any person through surveillance and interception, except the IFTA.

The court noted that the scope of the IFTA, as discussed above, is also restricted to the surveillance and interception of a person who is suspected to be involved in any terrorist or anti-state activity. “Besides this limited scope under the IFTA, no other law regulates the fundamental right of privacy of citizens and allows probe into their lives through surveillance and interception,” says the order adding that in the remaining sphere the right to privacy is absolute, until law is enacted to regulate it.

“The violation of this sphere of the absolute privacy right makes the inadmissibility of evidence collected in violation thereof also absolute. Absolute right entails absolute prohibition on its violation,” says the order. The court further noted that it was submitted that since there was, and could not possibly be, any law that allows for surveillance or hacking of any communication of Judges or their family members, the bar, as noted in the extract above, was absolute and that therefore, at a very fundamental level there could hardly be any point in light of the forgoing observations to the inquiry envisaged by the impugned notification being held.

In addition, it was also submitted that in respect of the petitioner in who is an Advocate, the alleged audio (the veracity of which was directly challenged) would amount to illegal disclosure of privileged communication which could not form the subject matter of any inquiry, the order said. In this respect, the court noted that reliance was also placed in this regard on Ishtiaq Ahmed Mirza vs. Federation of Pakistan (PLD 2019 SC 675), which lays down detailed parameters as to admissibility of any audio or video material.

“Given that the alleged audios in the present case were all leaks made 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 authorization for the alleged audios and so also the identity of the person or hacker engaged in or abetting such acts. “On any view of the matter, therefore, learned counsel submitted, further proceedings by the commission in terms of the impugned notification would amount to a continued serious breach of fundamental constitutional principles and rights,” the order concluded.

Meanwhile, Interior Minister Rana Sanaullah said the government had formed the three-member judicial commission to probe veracity of audio leaks due to pressure from civil society and bar councils. Speaking in Geo News programme ‘Naya Pakistan Shahzad Iqbal Ke Saath’, he said the person of chief justice of Pakistan was also involved in the issue; therefore, there was no need to consult him for formation of a judicial panel.

He said how the CJP could have been consulted for formation of a judicial commission in such a situation. He said the son-in-law of one judge, the mother-in-law of the other judge (CJP Umer Ata Bandial) and a son of the third judge were part of the audio leaks, so they could not be consulted for formation of a judicial commission. He said it was not written in the law anywhere that the government should consult the CJP before formation of a judicial commission. Earlier, addressing a press conference here in Islamabad, Interior Minister Rana Sanaullah Friday said six out of 499 cases were being processed for trial in military courts under the Pakistan Army Act and Official Secrets Act 1952. Two of the six cases would be tried in Punjab and four in Khyber Pakhtunkhwa.

Sana rejected the impression created by the PTI that all the cases would be tried in military courts, saying the remaining cases would be tried in civil courts. “33 suspects – 19 in Punjab and 14 in Khyber Pakhtunkhwa – found involved in attacking military installations during violent protests on May 9 have been handed over to the military,” he said. “Only 19 accused have been handed over to the military courts or military officials in Punjab and 14 in KP.”

Sana clarified that the military authorities would investigate the case and decide where they could be tried under the Army Act or Official Secrets Act. The minister said 88 out of 499 FIRs had been registered under the Anti-Terrorism Act and the remaining 411 on the charges of vandalism, arson or interfering in the state matters. The minister said almost 4,000 people — 2,588 in Punjab and around 1,100 in KP — had been arrested under the terrorism charges. “A total of 5,536 people were arrested in cases registered under other laws of which almost 80 percent have been released on bail,” he said. Sana said the military laws applied on an individual where a building or part of a building related to “defence” had been trespassed.