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SC suspends notification regarding formation of commission to probe audio leaks

ISLAMABAD: The SCP on Friday (26th of May 2023) suspended the federal government’s notification and stayed the proceedings of judicial commission formed to probe the audio leaks related to the judiciary.

The court also issued notices to the Attorney General for Pakistan (AGP) and other respondents in all petitions.

A five-member SC bench headed by Chief Justice Umar Ata Bandial, Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed heard separate petitions filed by PTI Chairman Imran Khan, Supreme Court Bar Association (SCBA) President Abid Shahid Zuberi, SCBA Secretary Muqtedir Akhtar Shabbir and Advocate Riaz Hanif Rahi requesting to declare the commission’s formation illegal.

The court in its written order of today’s hearing stated that the counsel for the petitioner prayed for interim relief since the Commission had already started functioning and has made an order on 22.05.2023 and the next meeting of the
Commission was scheduled for 27.05.2023.

In the circumstances, till 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 was suspended as was the order dated 22.05.2023 made by the Commission and in consequence thereof proceedings of the Commission were stayed.

At the outset of hearing, Attorney General for Pakistan had sought permission to make a preliminary submission which was to the effect that Chief Justice Umar Ata Bandial should ought to consider recusing himself from the Bench.

He said that the constitution of the Commission and in particular the appointment of its Chairman could not have been done by the Chief Justice, in view of the stated subject matter of the reference.

The court repelled the contention 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.

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, read the order.

The order 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.

We may note in this regard that even though the other two members of the Commission are Chief Justices of respective High Courts as noted 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 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 Chief Justice of Pakistan was required for their appointment.

Prima facie, therefore, the very constitution of the Commission is cast in doubt.”
Further hearing of the case would be held on 31st of May.