The Supreme Court has begin hearing a set of petitions challenging the constitution of a government-appointed judicial formed last week to probe audio leaks which have surfaced on social media over the last few months.
Headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, a five-judge panel consisting of Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed is hearing a set of four petitions moved by president of the Supreme Court Bar Association (SCBA) Abid Shahid Zuberi, SCBA Secretary Muqtedir Akhtar Shabbir, PTI Chairman Imran Khan and Advocate Riaz Hanif Rahi.
All four petitions seek to declare the constitution of the audio commission as illegal.
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 commission had 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 (tomorrow).
The hearing
Babar Awan appeared on behalf of the PTI chairman while SCBA President Abid Shahid Zuberi and Secretary Muqtedir Akhtar Shabbir were also present alongside Advocate Riaz Hanif Rahi.
At the outset of the hearing, Attorney General for Pakistan (AGP) Mansoor Usman Awan came to the rostrum and objected to the five-member larger bench hearing the case.
At this, the CJP remarked, “How can the government select judges of the Supreme Court [to serve] its own purpose?”
“Attorney general sahib, this is a matter concerning the judiciary’s independence. Enough is enough attorney general sahib, take a seat,” CJP Bandial said.
He said that the government cannot have judges included in benches “as per its wishes”. He further said that because of the events of May 9, when violent protests broke out in the country following the arrest of the PTI chief, statements that were critical of the judiciary had stopped.
“Don’t interfere with our administrative powers,” Justice Bandial told the AGP. “We have complete respect for the government,” he said, adding that the judiciary was the protector of basic human rights.
Justice Bandial also observed that the government had legislated on regulating the CJP’s powers in haste. “If the government would have consulted us, we would have shown [you] a better path. You have also made bail and family cases a part of the legislation,” he said.
The petitions
Both Abid Zuberi and Muqtedir Shabbir filed the petition on Thursday, in which they requested the SC to order the federal government, the inquiry commission, the Pakistan Electronic Media Regulatory Authority and the Pakistan Telecommunication Authority to identify persons or entities operating anonymous Twitter accounts/handles.
They further requested the court to pass directions to fix responsibility for engaging in the unconstitutional practice of illegal phone tapping in the territory of Pakistan.
Likewise, Imran Khan also pleaded in the petition that the commission should probe the “powerful elements” behind the audio leaks. These elements allegedly tapped and recorded telephone conversations of citizens, including high-ranking public functionaries.
The SCBA petitions contend that the government or any person, authority, or functionary, whether identified or anonymous, should not conduct surveillance of citizens through phone tapping, phone interception, or any other similar means, except in accordance with the Investigation for Fair Trial Act, 2013.
The petitions also pray before the apex court to declare that no legal proceedings or penal action, under any law including the Pakistan Commissions of Inquiry Act, 2017, could be taken against any citizen based on alleged audio recordings mentioned in the May 19 notification by any other state body, including regulatory bodies.
The petitions argue that with the advent of modern technology and the popularity of social media, it has become possible to anonymously upload illegally obtained tapped phone conversations or fabricate, distort, manipulate and disseminate such illegal recordings across the populace, anonymously, to cast aspersions against institutions such as the judiciary or to blackmail citizens.
All the audio recordings referred to in the May 19 notification have been disseminated by uploading them on unverified, anonymous social media accounts. It is submitted that such unlawful tactics not only blatantly violate the law and the constitution but also enable those in power to suppress citizens and trample upon their fundamental rights without attracting any liability or leaving any trace.
The petition submits that such conduct cannot be allowed, as it will further erode the fabric of society, respect and dignity of individuals, as well as institutions, and the rights and privileges enjoyed by citizens.
Zuberi argued that any communication between an advocate and his client is protected by legal privilege. Illegally recording legally privileged communications that took place over different periods of time and then doctoring such communications to further a nefarious agenda violates Article 18 of the Constitution and the protections afforded by law.
The commission
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 CJP 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 Elahi and lawyer Abid Zuberi regarding fixation of some cases before a particular SC bench; between 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 Imran 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.
More to follow