ISLAMABAD: The Supreme Court suspended the operation of the notifications and stayed the proceedings of the inquiry commission set up to probe audio leaks until May 31.
A five-judge bench, headed by Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi, and Justice Shahid Waheed, on Friday, heard the petitions of Pakistan Tehreek-e-Insaf(PTI) Chairman Imran Khan, Supreme Court Bar Association President Abid Shahid Zuberi, SCBA Secretary General Muqtedir Akhtar Shabbir, and advocate Riaz Hanif Rahi.
The court stayed the proceedings of the inquiry commission, comprising Justice Qazi Faez Isa, senior puisne judge Supreme Court, Chief Justice High Court of Balochistan Naeem Akhtar Afghan, and Chief Justice Islamabad High Court Aamer Farooq, which were slated today (May 27).
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The federal government on May 20 had set up the Commission in exercise of its power under Section 3 of the Pakistan Commissions of the Inquiry Act, 2017, to inquire into the veracity of the wide circulations of audio in the media and social media.
The notices were issued to the respondents and the Attorney General for Pakistan in terms of Order XXVIIA of the Civil Procedure Code.
The court order says; “… till the next date of hearing (May 31), the operation of the impugned notification No.SRO.596(I)/ 2023 dated 19.05.2023 issued by the Federal Government is suspended as is the order dated 22.05.2023 made by the Commission and in consequence thereof proceedings of the Commission are stayed.”
The court turned down the attorney general for Pakistan (AGP)‘s request that Chief Justice of Pakistan Umar Ata Bandial recuses from the bench. At the onset of the proceeding, AGP Mansoor Usman Awan, coming on the roster, referring SRO VI said: “I request with humility that the CJP don’t hear this matter, and judge next in line hear these petitions.“
The court order said that 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.
It further said; “Since this power was peculiar to the said office, the incumbent for the time being of the same could neither divest himself nor be divested by the Federal Government from discharging the constitutional duty.” “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.”
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 Hon’ble Chief Justice of Pakistan was required for their appointment.“ “Prima facie, therefore, the very constitution of the Commission is cast in doubt,” it added.
During the hearing, the chief justice said there seems to be some error in the notification, as it overlapped with Article 209 of the constitution as under this article the Supreme Judicial Council (SJC) see the conduct of a judge (against whom a reference is filed). The CJP stated that the notification has violated the trichotomy of power, adding the role of investigative agencies is given to the judicial commission.
Justice Bandial further said the Court takes Article 175(3) of the constitution seriously and cannot ignore the principles laid down in Sharaf Afridi case 33 years ago for the independence of the judiciary. “We don’t have coercive authority, but render justice after hearing the parties.” He said for the inquiry commission on “dharna”, three notifications for the nomination of judges without the consultation of the chief justice were issued, and those were withdrawn.
The chief justice said under Article 175(3) the judiciary shall be separated progressively from the executive. The government must show respect towards the judiciary. “I am sorry to say this that an effort had been made regrettably and unknowingly ‘to draw [a] wedge between the judges’”.
At that point, the attorney general informed the bench that in petitions against Supreme Court (Practice and Procedure) Act case and in CP-5 on Punjab elections, he had requested the bench to constitute a full court, but that was not considered.
Copyright Business Recorder, 2023
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