ISLAMABAD: The chairman of Pakistan Tehreek-i-Insaf (PTI) Monday petitioned the Supreme Court against the formation by the government of a judicial commission to probe recently leaked audio tapes that plunged the pugnacious judiciary into controversy.
The development came days after the government of Pakistan Democratic Movement (PDM) notified a three-member commission to investigate the secretly-recorded conversations that it claimed have raised questions about the “independence, impartiality and uprightness” of superior court judges in administering justice.
Headed by Justice Qazi Faez Isa, the panel also includes Chief Justice Naeem Akhtar Afghan of the Balochistan High Court (BHC) and Chief Justice Aamer Farooq of the Islamabad High Court (IHC).
A notification issued by the Cabinet Division on Friday declared that several leaked conversations over the past year have eroded public trust and raised “serious concerns” about the impartiality of judges.
“Under the Constitution […] the independence, integrity and character of chief justices/judges is of utmost importance for keeping the public trust and confidence in the administration of justice,” it said.
The communiqué, however, showed scant interest in uncovering the government agency responsible for the illegal recordings of conversations, which spared not even the family members of the top judges.
The opposition party of former prime minister Imran Khan filed a constitutional petition, nominating the state and the ministry of interior, which is headed by a confidante of deposed prime minister Nawaz Sharif, as respondents.
The primary objective of the commission is to scrutinise leaked tape apparently involving present and former members of the superior courts, as well as their family members.
The investigation aims to determine the authenticity of these recordings and assess any potential impact on the independence of the judiciary.
The petition moved by the party questions the government’s authority to bypass the chief justice of the Supreme Court and unilaterally appoint a judge from a superior court to serve on a judicial commission without the prior consent and approval of the chief justice.
It also raises concerns about the implications of forming such a commission without considering the provisions outlined in Article 175(3) and the judicial precedent set in the Sharaf Faridi v Federation of Pakistan (1994) wherein the judiciary was established as separate from the executive in all aspects.
Furthermore, the petition challenges the commission’s ability to examine the telephone tapping, particularly in light of a previous ruling by the Supreme Court that declared tapping as a violation of fundamental rights in a case involving slain prime minister Benazir Bhutto.
“Whereas under the Supreme Court judgment, the only thing left for determination is, that under what authority of law a telephone conversation of a judge of a superior court, a prime minister or their families, parliamentarians and political workers of a party duly registered with the Election Commission of Pakistan (ECP) can be tapped and what are the consequence of such unconstitutional and illegal phone tapping,” it questioned.
It questioned whether the act of creating the commission did not “amount to a confession by a sitting regime that under their nose by telephone tapping, fundamental rights as given under Article 4, 9 and 19 are not violated”.
The plea continued that the “self-styled terms of reference framed” by the government were “politically motivated [and] aimed at effecting the independence of the judiciary and the institution.”
It was “an outright effort to circumvent and jeopardise the independence of judicator in the country and circumvent the enforcement of different laws of the land […] and the notification is ultra vires to the Constitution and [the] law”.
Khan requested the top court to declare the notification as “ultra vires to the Constitution”.
It further requested that “a judicial commission may kindly be constituted in the light of judgment passed” by the top court regarding the “illegal phone tapping […] to meet the interest of justice.”