The Chief Justice and the bench he heads up have put a halt to all government notifications.
In-depth court notes The CJP was not consulted prior to the formation of the government’s agency that checks the authenticity of audio leaks involving judges.
In a move that was widely anticipated, the Supreme Court in ISLAMABA on Friday put a hold on an investigation committee chaired by Justice Qazi Faez Isa that was investigating the authenticity of recent audio leaks and their effect on the independence of the court.
In an eight-page ruling, CJ Umar Ata Bandial said, “Prima facie, the very constitution of the commission is cast in doubt as the government did not consult the chief justice of Pakistan for the nomination of a judge.”
While hearing four petitions filed by PTI Chairman Imran Khan, SCBA President Abid Zuberi, and others against the inquiry commission formed by the federal government last week, a five-judge SC bench consisting of the chief justice and Justices Ijazul Ahsan, Munib Akhtar, Syed Hasan Azhar Rizvi, and Shahid Waheed issued the order.
Naeem Akhtar Afghan, chief justice of the Balochistan High Court, and Aamer Farooq, chief justice of the Islamabad High Court, were also members of the panel.
An order stated, “In the circumstances, until the next date of hearing, 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 operation of the order dated 22.05.2023 made by the commission and in consequence thereof [the] proceedings of the commission.”
All respondents have received notifications from the court in response to the petitions. As an extra precaution, “[a] notice be also issued to the learned Attorney General for Pakistan [AGP] in terms of Order XXVIIA of the Civil Procedure Code,” the document stated.
The Assistant Attorney General (AAG) Mansoor Awan asked for and was granted permission to make an initial argument during the hearing, in which he urged Chief Justice (CJ) Bandial to consider stepping down from the bench due to a potential conflict of interest.
However, the order insisted that whenever a sitting judge was intended to be made a member of the body, permission of the chief justice of Pakistan had to be sought first. This was a constitutional principle that had been acted upon multiple times in the constitution of commissions.
Judges launch ‘open’ investigation into audio leaks, according to a recent report
That “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,” the ruling said.
The order went on to say that a supremely important “constitutional principle” had been “breached” since it appeared the federal government had acted alone in this situation.
Despite the fact that the other two members of the commission are chief justices of respective high courts, as mentioned above, 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 the chief justice of a third high court. According to the order, “in view of the established principles of federalism, prima facie, the aforesaid constitutional principle would apply even with regard to the other two members of the commission and, accordingly, the permission of the Hon’ble Chief Justice of Pakistan was required for their appointment.”
According to the order, this calls into question the fundamental legitimacy of the panel itself.
During the hearing, CJP Bandial expressed sadness that efforts were being made, consciously or not, to divide the SC judges.
He said that the violence on May 9 had helped the judicial system since people were no longer speaking out against it.
He also cast doubt on the probe commission’s legality, arguing that it overstepped its bounds and breached the constitutional trichotomy of authorities.
