ISLAMABAD:
Decisions being taken at the Lahore and Islamabad high courts are under the watchful, almost microscopic, eye of the Supreme Court and in some of the cases, the highest stakes are involved for the ruling government.
The Lahore High Court had overturned the ECP decision on recounting in three constituencies where Pakistan Tehreek-e-Insaf (PTI)-backed hopefuls were declared as returned candidates in accordance with forms 45 and 47.
Last week, the SC, by a majority of two to one, set aside the LHC orders and restored the ECP decision to recount the votes. CJP Qazi Faez Isa, in the majority opinion, also emphasised that the Election Commission is a constitutional body and its chairman and members are entitled to respect.
“Unfortunately, some learned Judges of the High Court lost sight of this and passed derisive remarks. Every constitutional body and constitutional office holder, in fact, everyone, deserves courtesy and respect. Institutions gain in stature when they act respectfully,” says the order.
The majority opinion also raised questions on the maintainability of writ petitions against ECP decisions on recounting. However, Justice Aqeel Ahmed Abbasi has dissented with the majority order and endorsed LHC rulings against the commission’s orders.
The five-member larger bench, led by CJP Isa, has also suspended the LHC judgments on forming eight election tribunals in Punjab, as well as the high court’s determination that its chief justice has the final say on the appointment of such bodies.
Earlier, PTI candidate Salman Akram Raja, who was the petitioner in the LHC, raised legal objections on proceedings. He objected that instead of filing an intra-court appeal (ICA) in the LHC, the ECP approached the apex court directly. During the hearing, CJP Isa again questioned the maintainability of Raja’s writ petition as it was a dispute between the ECP and LHC CJ. However, a final decision on the Punjab election tribunals case is yet to be made by the SC.
The larger bench will decide as who has primacy in the consultation process between the ECP and the high court CJ on the appointment of election tribunals.
Meanwhile, a division bench, comprising Justice Aminuddin Khan and Justice Naeem Akhtar Afghan, has also restrained the Islamabad High Court from proceeding further in the audio leaks case. IHC’s two interim orders regarding the illegal surveillance of citizens have also been suspended by the bench.
IHC single judge, led by Justice Babar Sattar, has yet to give a final order in the audio leaks case. Lawyers are questioning the SC’s proceedings on the high court’s interim order.
Interestingly, all three cases are crucial for the present regime. Critics say the SC appears to be giving timely relief to the government by suspending the high courts’ orders.
Black coats weigh in
Advocate Abdul Moiz Jaferii says that this was perhaps the most intricately and competently layered judicial process he has ever seen. “Justice Babar Sattar had begun by asking how surveillance is possible. The government had begun with its usual position, by saying that they don’t know anything about surveillance and it must be impossible.”
He adds that over the course of a year’s worth of a meticulous and layered judicial process, Justice Sattar’s court had first discovered who is responsible for interceptions of private conversations, then discovered how it is made possible when the telecommunication companies came forward and detailed the lawful intercept management system (LIMS), which can at any moment surveil four million people
“Thereafter, the government had responded by trying to accuse the judge of bias and his family’s data had been publicly leaked, whilst propaganda was created against his motives and interests.” The lawyer continues that Justice Sattar still stood firm, focusing and continuing the process which finally got to the root of the system and the issue last month.
“We found out that no one has actually been legally surveilled in our country. The law was never used, the process never followed.”
Thereafter, he issued orders which basically required the government to adhere to its own laws when surveilling people
“Today a bench assembled, without any clarity by the SC, reduced this meticulous judicial examination to a question of whether or not those alleging violation of their privacy had first surrendered their privacy to the state to prove these leaks weren’t their own doing.”
Jafferi bemoans that is a shambolic state of affairs. “With the backdrop of a larger bench currently seized of a complaint by superior court judges of illegal surveillance and influence, for a Supreme Court bench to reduce this issue to one of trial and procedure is incomprehensible”
He concludes that if the judiciary is being told by its seniormost members that it is better to surrender its independence and leave it to the chiefs, then people should not wonder why hooligans attack the court. “When you have no regard for the pillars upon which you stand, what do you expect to play out?” Advocate Jafferi asks rhetorically.
Barrister Asad Rahim Khan also says that a particular segment of Supreme Court judges is trying, in the same fashion as the present regime, to set up a firewall – this one against a series of high court orders that attempt to remedy gross abuses of power. This not only makes for poor and incoherent jurisprudence, it also fails at precluding the rights-based approach of the Lahore and Islamabad High Courts, he adds.
Barrister Hafiz Ahsaan Ahmad Khokhar, meanwhile, states that on May 20, 2023, the federal government issued a notification for the establishment of a judicial commission, which was chaired by Justice Fiaz Isa, and included chief justices of the Islamabad and Balochistan high courts.
“This was done in accordance with the Pakistan Commission of Inquiry Act, 2017, and the body tasked with looking into leaked audio clips that were aired in April 2023, purportedly involving some current and former members of the superior judiciary and their families.” He said the ultimate goal was to determine the veracity of the audio clips, as well as their impact on the independence of the judiciary, and to make a recommendation.
The lawyer adds that on May 26, 2023, a bench, led by former chief justice Bandial, and comprising Justices Ijazul Ahsan, Munib Akhtar, Syed Hassan Azhar Rizvi, and Shahid Waheed, halted the commission’s activities.
In a concise statement, the Justice Isa-led Commission also objected to the five-member bench, contending that it would not be appropriate for it to hear these petitions because Supreme Court judges were expected to refrain from allowing their personal interests to influence their official conduct or decisions. “However, the matter is still pending with stay in the Supreme Court after more than a year”
Khokhar says that subsequently, private parties challenged the same case before the Islamabad High Court, which ultimately issued an order on May 29 and June 25, 2024, respectively, on various grounds. The federal government is currently contesting this order before the Supreme Court in the current appellate proceedings.
Hafiz Ahsaan further highlights that as the inquiry commission was duly constituted by the federal government and the Supreme Court had taken cognizance of the same subject matter on its composition, thus it would have been legally appropriate for the high court to restrain its jurisdiction while passing the impugned orders being pending matter of the Supreme Court.
He says that it is only the mandate and functions of the inquiry commission to probe such things as the present one if was constituted under the Pakistan Commission of Inquiry Act, 2017 by the federal government, as these facts or investigations cannot be properly conducted or taken into under Article 199 of the Constitution, being not a proper legal forum to resolve factual controversies as held in various judgments of superior courts.
Hafiz Ahsaan Ahmad Khokhar, while commenting on Monday’s Supreme Court proceedings, says that while passing the impugned orders, the high court not only ignored the provisions of Section 54 of the Pakistan Telecommunication (Re-organization) Act, 1996, but decided only under the provisions of Fair Trial Act 2013, which in the present case was not applicable as the matter was maximum under PECA law.
He further elaborates that the learned single judge of the Islamabad High Court also exercised Suo Moto jurisdiction while passing both the impugned orders. Now, the division bench of the Supreme Court has rightly observed that a Suo Moto notice is a legal action that can only be taken by the Supreme Court in matters of public importance without being prompted by a formal complaint or petition under Article 184(3) of the Constitution. According to the legal expert, the IHC’s orders of May 29 and June 25 2024 were beyond its legal authority and resultantly not sustainable.
He finally said that as a result of the Supreme Court proceedings, the involvement of the Islamabad High Court will remain stayed till further orders. Additionally, he stated that the Supreme Court ought to resolve the ongoing dispute over the audio leaks commission’s constitution and make a decision on the pending,” he states.
