CJP inquired, “The question is who planted the audio leaks? Has the government tried to find out who is behind this?”
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At that, Justice Munib Akhtar asked if the case being heard at the moment was pertaining to whether the audio leaks were correct in hindsight.
the CJP quipped. “First judges were ridiculed through the audio and then it is being said that these leaks will be investigated.”
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ISLAMABAD ( Web News )
Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial on Tuesday asked if the government had utilised its resources to trace those behind recording and leaking audios of conversations.
CJP Umar Ata Bandial passed these remarks as a five-judge bench of the Supreme Court (SC) resumed hearing pleas challenging the formation of a judicial commission led by Justice Qazi Faez Isa to probe audio leaks.
Along with the CJP, the bench also comprises Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed. “How and where are the audio leaks emerging from? Who is behind this?” Justice Bandial asked as the apex court took up a set of four petitions challenging the constitution of the audio leaks commission.
The petitions were moved by Supreme Court Bar Association (SCBA) President Abid Shahid Zuberi, SCBA Secretary Muqtedir Akhtar Shabbir, PTI Chairman Imran Khan, and Advocate Riaz Hanif Rahi. All of the pleas requested the court to declare the constitution of the audio commission illegal.
The federal coalition government had formed the commission on May 20 under Section 3 of the Pakistan Commission of Inquiry Act 2017. Led by senior puisne judge Justice Qazi Faez Isa, the commission also comprises Balochistan High Court Chief Justice Naeem Akhtar Afghan and Islamabad High Court Chief Justice Aamer Farooq.
On May 28, the top court restrained the panel from going ahead with its task. The verdict was issued by the five-member bench hearing the case.
Subsequently, the government-appointed commission decided to put its proceedings on hold until the SC decided the petitions. Last week, both the commission and the government had objected to SC proceedings.
During the hearing on Tuesday, Attorney General for Pakistan (AGP) Mansoor Usman Awan read the audio leaks commission’s terms of reference (TORs) in the courtroom. “One of the audio leaks is related to the CJP’s mother-in-law,” he pointed out.
At that, Justice Munib Akhtar asked if the case being heard at the moment was pertaining to whether the audio leaks were correct in hindsight.
Awan replied that the government had just formed a commission at this point and its purpose was to determine the authenticity of the leaks.
“Is the federal government not aware whether the audio leaks are authentic or not?” Justice Akhtar asked. “Senior cabinet members even held press conferences on the leaks … is it not true that the interior minister held a press conference?
“Some audios were even played in the press conference,” the judge noted. “Is it lawful for someone, who doesn’t know about the truth of the audio leaks, to raise objections to the bench?”
Justice Akhtar further stated that he was inquiring about the maintainability of the AGP’s appeal seeking the reconstitution of the bench.
“Why did the interior minister hold the press conference? Can such carelessness be shown?” he went on to ask. “After such a statement, the minister should have been removed or resigned.”
For his part, Awan asked if a minister’s statement could be considered as the stance of the government. “It is not in my knowledge if someone had held a press conference.”
However, Justice Akhtar asserted that the federal cabinet should have shown “collective responsibility” on such an important issue. “A minister talking about tea is different, but here a statement was given on an important issue,” he said.
At that, the AGP asked the court to see if the interior minister’s statement was given before May 19 or after.
“Wow, what a beautiful way and what justice with the judiciary,” the CJP quipped. “First judges were ridiculed through the audio and then it is being said that these leaks will be investigated.”
Justice Akhtar also remarked, “This is an easy way to remove any judge from a bench … make an audio with their name.” He then contended that there legal reasons involved in judges recusing themselves from benches. “This option is not available for anyone to come and say that this judge can’t hear this case.”
Here, the AGP said that that was the reason why the government had formed the audio leaks commission.
At one point, the CJP inquired, “The question is who planted the audio leaks? Has the government tried to find out who is behind this?”
Find out whether the Twitter handle [involved in leaking audios] is operated locally or internationally,“ he said.
Awan replied that the government was looking into these questions through the commission. “How were the calls recorded and all such queries will be reviewed by the commission,” he said.
Awan further maintained that the matter was in its initial stages currently, adding that as per the federal cabinet, the recordings were “alleged audios”.
“Only this statement of the government should be seen,” he said, highlighting that apart from the cabinet, statements of any ministers should be seen in a personal capacity.
“If the defence minister gives a statement, should that not be seen as the government’s stance too?” Justice Akhtar asked here.
“If a matter turns out to be relevant to all the judges of the Supreme Court, then this theory can be applied as the doctrine of necessity,” the AGP replied.
At one point during the hearing, Justice Akhtar recalled that no objections were raised to the bench during the Benazir Bhutto case. “Phone calls of four out of seven judges hearing the case were tapped.
“Did the judges, whose calls were tapped, not take the right decision in that case?” he asked.
Awan responded, “The government’s case is not on the bias, but the conflict of interest.”
Meanwhile, Justice Bandial asked if the government’s objection was only to the judiciary proceedings or also to the execution of the court’s administrative affairs.
The AGP argued that a person could not be a judge of their own cause, assuring the bench that the government did not have any ill-intention in the matter. “Changes in the bench will not affect the right of the petitioners who approached the court,” he added.
Awan subsequently requested the court to review the appeal regarding the re-constitution of the bench and concluded his arguments.
At the outset of the hearing, AGP Awan came to the rostrum and read out loud the government’s objections to the five-member bench hearing the case.
He also proceeded to read out the SC’s order issued after the previous hearing.
“What point do you want to speak on?” CJP Bandial asked after the AGP concluded. “You are missing one thing,” he noted, highlighting that the post of the chief justice was “constitutional”.
“No one can assume the charge of CJP on the basis of an assumption. In this case, the chief justice was available but wasn’t informed about the formation of the
“Present your arguments on these points,” he said and directed Awan to understand the law before reading out previous judgments issued by the court.
Here, the AGP said he wanted to first present arguments on the constitution of the bench.
“Are you heading towards the point that three of us judges are controversial?” Justice Bandial asked. “If you go towards that, you will have to explain the basis on which you assumed that there is conflict among the three of us?”
“I want you to focus on the more important issue instead of others,” he remarked, noting that another pressing matter was the freedom of the judiciary.
The bench reserved its verdict on a government petition against the composition of the bench hearing pleas against constitution of the inquiry commission formed by the federal government to probe audio leaks.
A petitioner, Riaz Hanif Rahi Advocate, told the bench that no diary number had been allotted to his contempt of court petition. At which, the top judge replied: “The contempt matter lies between court and contemnor”. He further asked Mr Rahi to remove objections raised to his petition, adding that a judge cannot be made a party in a plea regarding contempt of court.
Later, Attorney General for Pakistan Usman Manoor Awan took to rostrum and read the objection raised by the government regarding the composition of the bench. He also read out the order issued by the apex court regarding previous hearing.
The CJP then inquired, “On which point you would like to talk”. He told the AGP that he was missing one thing, adding: “the chief justice of Pakistan is a constitutional position and no one could take its charge or use it on the basis of assumptions”.
He said the chief justice was not informed about the constitution of the inquiry commission despite his availability, asking the AGP to give arguments on this point.
The AGP said he would first submit arguments regarding the constitution of the bench. At which, the CJP said: “Are you coming to this point that three of the judges are controversial?”
“If you come to it, you have to tell how it was assumed that the tree judges are in conflict to the case. I would ask you to focus on important issues,” he remarked.
The chief justice said, “Independence of judiciary is an important issue”. In reply, the AGP read out the TORs of the commission, adding that one of the purported audios related to the mother-in-law of the CJP.
“Is your case at this time is that the audio are prima facie authentic?” Justice Akhtar questioned. To which, Mr Awan said the government had just formed a commission to find the facts.
Justice Akhtar said a senior member of the cabinet made a press conference on the audios while the government was yet to determine their authenticity. He said if it was correct to raise objection to the bench when the reality of the audios was elusive.
Why had the interior minister held the presser? Justice Akhtar questioned, adding that the minister should resging for making statements without verifying the authenticity of the audios.
At which, the AGP said the statement of a minister could be taken as a viewpoint of the government. He later said he was not aware of such press conference.
At one point, the chief justice asked: “Has the government used its resources to unearth where these recordings are being made?”.
“The question is this who has planted this audios,” he said while asking if the government has tried to trach the elements behind these recordings. He remarked no judge could be asked to disassociate himself from the bench by levelling allegations against him.
AGP said the government will look into this matter through the inquiry commission.
After the AGP wrapped up his argument, the Supreme Court Bar Association’s lawyer, Shoaib Shaheen, started presenting his arguments. He said the audio leaks started leaking after the top court took suo motu notice regarding delay in Punjab elections.
He said three audios were leaked on Feb 16 when the apex court was set to hold the first hearing the case for hearing. Further audios emerged on Feb 17 and it is continued till today, he said.
Mr Shaheen said the TORs of the commission did not cover the angle that who was recording these audios. He pointed out that all audios were leaked by a hacker.
The inquiry commission formed by the federal government to probe audio leaks has also raised objections to the constitution and composition of the Chief Justice of Pakistan Umar Ata Bandial-led bench hearing a plea against it.
The commission said it would not be appropriate for the bench to hear these petition as one of the audio recordings allegedly pertains to the mother-in-law of the chief justice. “Hon’ble Mr. Justice Munib Akhtar may also be mentioned in the said recording. An. It another audio recordings reference is made to case fixation before a particular bench headed by Hon’ble Mr Justice Ijazul Ahsan,” reads the reply.
Citing the recently approved “The Supreme Court (Practice and Procedure) Act, 2023, it said the bench could not hear the case as the Committee, comprising the CJP and two most senior judges, had not determined which bench should hear the petition.
“The Supreme Court Rules, 1980 (the Rules’) require that notices, prior to filing of any petition, must be sent by the petitioner/petitioner’s counsel to the respondents informing about the filing of the petitions, but this was not done. The Rules also require submission of an affidavit of service confirming service of notice on the respondents, and though such an affidavit was filed, service was not affected. Till date the Commission has not received copies of the petitions, therefore, the Commission reserves its right to attend to the same when and if the same are provided,”.
The inquiry commission further said the petitions had been filed under Article 184(3) of the Constitution but the “order of the Supreme Court dated 26 May 2023 does not mention this provision, let alone that the petitions were maintainable thereunder”.
A petition under Article 184(3) can only be filed provided ‘a question of public importance with reference to the enforcement of any of the Fundamental Rights’ is involved, the commission said, adding that how Mr Zuberi could represent the public interest when he was “one of the persons allegedly talking in the audio recordings”.
Concluding his reply, the commission said it has “no interest in the matter other than to undertake the assignment given to it and to do so strictly in accordance with the Constitution and the law. The Commission also assures that legal objections and concerns raised before it will be considered”.
Last month, the top court had halted the operations of the audio leaks commission following the order issued on the petitions filed by Imran Khan and others. The judgement, relying heavily on the principle of separation of powers, stated, “In as much as the Federal Government appeared to have acted unilaterally in this matter, a constitutional principle of the highest importance had been, prima facie, breached”.
“In the circumstances, till the next date of hearing, the operation of the impugned notification … issued by the Federal Government is suspended as is the order made by the Commission and in consequence thereof proceedings of the Commission are stayed,” the judgment read.
Following the court orders, the commission – headed by Supreme Court Justice Faez Isa and comprising Balochistan High Court Chief Justice Naeem Akhtar Afghan and Islamabad High Court Chief Justice Aamer Farooq – stopped further proceedings. However, Justice Isa remarked they had been barred from moving ahead with the process without even issuing a notice to them.
Earlier, the federal government had formed a three-member commission to investigate the leaked audios allegedly involving the judiciary and former chief justices and a judge, saying the conversations had raised apprehensions over impartiality of judges.