Formation of commission to probe audio leaks ‘Commissions of Inquiry Act doesn’t stipulate consultation with CJP’

ISLAMABAD: Pakistan Commissions of Inquiry Act, 2017 does not stipulate that the government must consult with the chief justice of the Supreme Court before it forms the commission and nominate its members.

Secretary Inquiry Commission stated that in the concise statement, which he filed in the Supreme Court on Wednesday in pursuant of the notice by five-judge bench.

The 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 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 chief justice said they have read in the newspapers that the federation has filed an application in this case. He said after hearing the Attorney General for Pakistan on next date would decide the matter.

The federal government requested Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Munib Akhtar to recuse from a five-member bench hearing the petitions against the formation of inquiry commission to probe the audio leaks.

The commission’s statement maintained Inquiry Act, 2017 grants power to the federal government, under section 3(2), to constitute the inquiry commissions. The Act does not stipulate that the government must consult with the chief justice of Pakistan before it constitutes a commission. It also does not grant to the chief justice the power to nominate members of a commission. “Merely because the government may elect to consult the Chief Justice does not mean that it has to. The Act has been in existence for over six years and, to the best of the knowledge of the undersigned, no challenge to it or specifically to its section 3(2) has been made, let alone the same having been struck down.”

The Commission said that the petitions against the Supreme Court (Practice and Procedure) Act, 2023 should have been fixed before the Committee, proposed in the Act. As it did not happen, therefore, these petitions cannot be heard till the said Committee, which comprises the chief justice of Pakistan, and the two most senior judges of the apex court, determines which bench should hear them.

Khawaja Tariq Rahim, advocate, who is one of the persons allegedly talking in the audio recordings and five others had filed petitions (the six petitions) challenging the Supreme Court (Practice and Procedure) Bill, under Article 184(3) of the Constitution, even before it became law. The Office of the Supreme Court had noted five legal objections to the maintainability of the six petitions.

However, Chamber appeals against the said Office Objections were not filed, nor were the Office Objections set aside by this Court. Yet in the six petitions ex-parte ad-interim orders were passed suspending the said bill and later on 2nd May 2023, it was ordered, “That injunction continues and shall continue to be enforced against the Act till further orders.” On 8 May 2023, the petitions were adjourned to 1 June 2023, that is, after 24 days.

The secretary submitted that the six petitions filed under Article 184(3) of the Constitution appear not to be maintainable because the two pre-requisites mentioned in Article 184(3) were not attracted, as was correctly noted by the SC Office, because the subject matter of the six petitions did not constitute a matter of public importance nor did they seek the enforcement of any fundamental right.

It said that the fate of these petitions is connected with that of the six petitions and till they are decided these petitions should not have been fixed for hearing. If the six petitions are dismissed it will create a legal quagmire - whether conducting court in the interregnum violated section 2 of the Supreme Court (Practice and Procedure) Act, 2023? The oath taken by the chief justices and judges of the Supreme Court and the High Courts’ requires them to act, “in accordance with the Constitution and the law”. They are also required to, “abide by the code of conduct issued by the Supreme Judicial Council” and not to allow their “personal interest to influence” their “official conduct” or “official decisions”.

The commission noted that one of the audio recordings allegedly pertains to the mother-in-law of the chief justice. Justice Munib Akhtar may also be mentioned in the said recording. And, in another audio recording reference is made to case fixation before a particular bench headed by Justice Ijazul Ahsan.

It submitted that Abid Shahid Zuberi (president Supreme Court Bar Association) is one of the persons allegedly talking in the audio recordings. It questioned whether Abid Zuberi can represent the public interest in such circumstances. All other persons allegedly found talking in the audio recordings neither have filed petitions, nor objected to appear before the Commission. On the contrary, Khawaja Tariq Rahim and Abdul Qayyum Siddiqui, have shown their readiness to do so.

It stated that journalist Qayyum Siddiqui appeared before the Commission, while Khawaja Tariq Rahim through email informed that he is not well and his statement be recorded in Lahore when the Commission will visit there to record the statements of “two old females”. However, Abid Zuberi and Najam Saqib neither appeared nor informed why have not done so. The reply said that the Commission in its first hearing had specifically clarified that it was neither the Supreme Judicial Council (SJC) nor was it assuming the powers of the SJC, it was incumbent upon the petitioners and their learned counsel to point this out and not make submissions to the contrary.

The petitioner’s counsel also contended that communications between Abid Zuberi, and his client is “privileged communication”. However, Abid Zuberi did not claim privilege before the Commission. Abid Zuberi has repeatedly spoken about the alleged audio recordings, including on national television both prior to, and after, passing of the order of this Court dated 26th May 2023. Abid Zuberi’s counsel, Shoaib Shaheen, also participated in several television programmes to discuss the workings of the Commission.

The reply further said that the apex court order dated May 26, 2023 has referred to settled principles of Federalism, and on the basis of the same it was noted that permission of the chief justice of Pakistan required before appointing the two chief justice as members of the Commission. It submitted that the Constitution stipulates that “Each High Court shall supervise and control all court subordinate to it”. The constitution does not grant a similar supervisory and/or controlling role to the Supreme Court with regard to the High Courts, let alone exclusively to the chief justice of Pakistan. Federalism requires, that the High Courts function independently.

Copyright Business Recorder, 2023