As a citizen of this country and not a lawyer (which I deeply regret), I have so many questions and observations.
One. When the audio leaks were circulated in the public, however obtained – and we all know how they were tapped and by whom – why did the alleged people not respond or react legally or procedurally? In the Pakistani style of governance and power dynamics, we have always seen the powerful, rarely respond morally ethically or professionally. Therefore, there was no response.
Two. When government chose to notify a commission to inquire about the various audio leaks since they involved prominent members of public offices, and to seek out their veracity, were they seeking to ‘restore the honour of the office or of office holders’ or conduct a witch-hunt against them by embarrassing them? We have seen in the past; these kinds of inquiry commissions are constituted for anything but ‘restoring public trust in public officials’ – because frankly, in Pakistan, that ship has sailed a very long time ago. Nevertheless, it is important that such inquiry commission was constituted. But it is equally important to investigate who leaked these audios and do they have the (legal) authority to record such audios?
Three. Having not attended the commission’s first hearing, I can read what was published, and its judgement on the record. It was constituted to restore some semblance of trust in the judiciary but also to verify what is true and what is false around the audio leaks: a commission to settle many important principles.
As I understand, the Commission would touch upon extremely important constitutional principles that protect the citizens of Pakistan, including the scope of privacy enshrined in article 14. Another important issue is the right of the public to the truth, the purpose of Article 184/3.
Four. The Commissioner Justices had earlier stated in their first meeting they were not encroaching on the jurisdiction of the Supreme Judicial Council (209) or passing any judgement on a fellow justice(s), prior to an investigation of any alleged misconduct.
Five. Nevertheless, the Chief Justice of Pakistan deemed it appropriate to ‘stay’ the inquiry commission on several grounds. From what I understood, he objected to the commission formed without his permission, as is the convention as the head of the supreme court. This is the norm, though not legally binding.
Six. The CJP also deemed the government forming such a commission an encroachment into the judicial domain – a case of inquiring about an alleged justice based on evidence which is illegally obtained and therefore inadmissible in court of inquiry. Moreover, the ‘trichotomy of power’ between the executive judiciary and parliament was being breached by the executive by notifying this commission.
Seven. The Chief justice also argued that the right to privacy (article 14) was violated by PEMRA and government authorities by allowing the audio leaks to circulate in the public. Therefore, the chief justice deemed it appropriate to ‘stay order’ this commission from any further proceedings.
Eight. I was very keen to listen to the counter arguments from the Commission Justices on these important points raised by the chief justice. They involve very important philosophical principles which we avoid talking about in Pakistan.
The right to privacy and dignity of ‘man’ (that itself needs to change to be more inclusive, don’t you think), enshrined in article 14. Justice Qazi Faez Isa asked, “Is this a blanket right?” That is to say, is the “right to privacy, about private matters in the home, between family members, about issues not concerning public matters?”
He then suggested is it not possible that under certain circumstances, if a conversation is tapped or recorded without your knowledge, but saves lives, or in the interest of the public good, it is then admissible or should it be admissible? The nature of what is or is not allowed in ‘unallowed recording’ is an important issue we must debate and deliberate upon.
The question of illegal recordings or inadmissible evidence was quoted from Justice Mansoor Ali Shah, Judgement (p 209), as to the scope of evidence collected in unconstitutional manner as admissible.
It is important that we talk further about the scope of the right to our privacy; where does it begin and where does it end in Pakistan? Where does the state managers’ writ override our individual privacy? I think this is a very important issue and should be adjudicated upon with lucid arguments for us to understand as to what our Justices think that the constitution-makers thought were our rights vs the state’s responsibilities.
We have seen so many violations of personal liberties in the name of the ‘collective good.’ Its scope and specificities should be on the record. Perhaps it is time that we are clearer as to the scope of individual privacy in Pakistan.
QFI mentioned an interesting example, where public cameras on the road record us all the time: is that a violation of privacy? Can that evidence not be used in a court of law?
Nine. The Commission asked if A1 84/3 which seeks to safeguard the interest of the public and protection of fundamental rights, is not in the interest of the public to know the veracity of these audio leaks? Is the (privacy) interest of the individual more paramount than the interests of the public?
I find this an even more interesting principle to debate about. We never discuss publicly which trumps the other in constitutional protection: the right of the individual or vs the welfare of the public (and also the question of who determines this). Which is considered more important and which prevails in society or in a court of law?
Personally, I am a proponent of individual rights as foundational for the welfare and freedoms of the collective’s safety. If one is safe, we are all safe equally. Nevertheless, what does the Constitution privilege? This is an important point of law and principle which needs airing and public discourse around.
We have seen the use of ‘national interest’ or public interest’ as a whipping tool of persecution in Pakistan for seven decades. But on the other hand, shouldn’t the public also hear and debate what are ‘public interests and what scope constitutes fundamental rights of citizens? I think it is an opportune time to debate these articles to its fullest scopes. Are privileges absolute? Is privacy absolute? Where do they start and where do they end?
Ten. Another very interesting point raised was the jurisdiction of the supreme court vs the high courts. This also pertains, of course, to the very nature of our federation. What is the relationship of power between the supreme court and the provincial high courts? The Chief Justice in his ruling suggested that the supreme court and the chief justice is a supervisory and superior in this relationship. Therefore, without his approval they (high court justices) cannot join a commission.
Honourable Justice Qazi Faez Isa, on the other hand, argued to the contrary. The federation of Pakistan gives the high court(s) the independence from the supreme court, and the SCP is not a supervisor of it. It can set aside a judgement of it, as the final appellant court. He refused to supervise high courts in the past because he did not believe it was not the role of the supreme court justices to do so.
This is another important principle that one needs clarity on. The relationship in the federation of Pakistan is lopsided in many forms; Punjab vs the remaining three provinces, the federal capital vs the provinces, and so on. And now this has seeped into the judicial power structure and their scope vs themselves.
What is the power and scope of the provincial courts and their relationship with the supreme court?
We live in a country where power has always remained centralized and controlled by a few if not one man. Does this also apply to the courts and judgements?
Eleven. The Commission Justices noted that although the public is aware that the honourable chief justice has passed an order against this commission of inquiry, it has not deemed it appropriate to send the notification of the stay order to them. This is sad, also against the code of conduct of the court and disrespectful. Is the Commission to hear, learn and understand through the public what is going on? As Justices of the Court, they are bound by a code of conduct which bars them from responding to public or via the media reports which are disquieting. But it seems QFI observed that the communication method some honourable Justices of the court have adopted is speaking to the media. Would it not have been prudent to speak at this Commission to share, explain and refute any misgivings?
Twelve. QFI said, “We do not have the fauj or weapons, but we do have moral authority.” I think there is a lot unsaid in this statement and a lot said which the public believes to be true. It is time, in my humble opinion, that public officials in charge of policy and justice are seen to have moral authority. That much I can say, witnessing the complete decay of such authority, where there should be lots in times of chaos and flux.
Thirteen. The Commission Justices were not pleased with the Attorney General of Pakistan, given that the government had constituted this commission, it did not seem to have argued its own case in front of the Chief Justice of Pakistan on any of the significant points raised by the Commission justices.
What was on display today was how justices differ and argue amongst each other, but in bright lights of the public.
The Attorney General of Pakistan had to listen to a displeased and stoic Commission bench. The AG was asked the following; why didn’t he argue Infront of the chief justice, that the commission of inquiry of the audio leaks, was an inquiry commission, not encroaching on the supreme judicial council’s jurisdiction (209).
Should every reference or allegation against a justice go straight to the SJC? Is that sensible or rational? Isn’t everyone presumed innocent before declaring them worthy of a charge? I felt pity for the AG who, couldn’t make headway with any government defense.
Why didn’t the AG argue that the government had the authority to notify a commission of inquiry under A216? Has that law been repealed asked QFI? The AG meekly mumbled “no.”
Where does it state that the chief justice must be consulted for appointing justices to a commission of inquiry? “Nowhere,” the AG added. Then why did you not make these submissions there?
Did you raise the matter of alleged conflict of interest(s)?
“Did you raise any of these points of law? Is it assumed we know a little about the law and constitution as well? Or not?” QFI asked.
The AG, I am sure, would have liked to be anywhere but in front of this Bench.
“Why are we constituting this commission?’ QFI asked the Attorney General? Shouldn’t the truth come out, doesn’t the truth override falsehood (Surah Israr was quoted).”
That said, abiding by the alleged notification of the Chief Justice (yet not received), the Commission of Inquiry constituted by the government of Pakistan is ‘adjourned’ until otherwise notified.
“What do we do now?” QFI asked his fellow Commission justices and the AG.
Blank faces.
This is how the war of words between justices’ manifests. Not pretty.