Audio scandal: Can SC put a stop to leaks' culture?

Already busy in adjudicating political cases that have caused a division among the top justices, the Supreme Court is now confronted with another big challenge in the shape of audio leaks.

Since the start of the apex court’s suo motu proceedings over holding elections for two provincial assemblies within 90 days, some audio leaks purportedly involving SC judges and their family members have created quite a stir in the country’s political arena.

However, the top court has shown judicial restraint and refrained from initiating any separate proceeding to deal with the issue.

However, while hearing a case related to the transfer of former Lahore city chief police officer (CCPO) Ghulam Mahmood Dogar, Chief Justice of Pakistan (CJP) Umar Ata Bandial on March 22 said for the first time that audio and video leaks lacked authenticity.

He said a “scurrilous campaign is launched against the judges through these tapes” but added that the judges were showing restraint and not taking action against people responsible for them.

Meanwhile, two leaked conversations have surfaced since then.

The latest audio leak features a conversation between two women– one of whom is said to be the mother-in-law of CJP Bandial and other is the spouse of Khawaja Tariq Rahim advocate

Rahim is one of the hosts of a lawyers’ function recently held to show solidarity with the SC judges, who are committed to uphold the constitutional provision in relation to holding the elections within 90 days.

He is also counsel of a petitioner who has challenged the Supreme Court Practice and Procedure Act, 2023, law that has reduced the CJP’s power to initiate suo motu proceedings. In the second audio, former chief justice Mian Saqib Nisar is purportedly heard giving legal advice to Khawaja Tariq Rahim.

There are different aspects to audio leaks.
Everyone agrees that the trend of audio leaks must come to an end in order to ensure the privacy of citizens. Even the federal government is urging the CJP to take notice of the leaks.

However, some people also lay emphasis on highlighting the purpose behind the leaks.

Some experts say the leaks are surfacing just to target the judges who are determined to ensure holding elections for the Punjab Assembly on May 14.

Another section, however, says that the leaks are an important tool to expose the real motive behind the judicial proceedings as well as to unmask the nexus of people who are supporting the Pakistan Tehreek-e-Insaf (PTI) by hatching a conspiracy against the coalition government.

Legal experts agree that there should be a code of conduct for retired judges.  Currently, retired judges cannot give formal legal advice as they are not enrolled with the Pakistan Bar Council (PBC) for the purpose of consultancy.

However, in the latest audio leak former CJP Saqib Nisar is purportedly heard giving informal advice to Khawaja Tariq in order to establish a contempt case against top functionaries of the government.

Though there is no legal bar on giving such advice, retired judges should refrain from giving such advice in political matters on moral ground.

A judge, who had recommended the nominations of several judges for elevation to the Supreme Court, should not give legal advice in order to avoid any negative perception.

Interestingly, the three judges, who are hearing the case related to the Punjab Assembly elections, had had a close association with former CJP Nisar during his tenure.

Legal experts believe that It is better that the matter of elections should now be referred to a full court.

Nisar, who is described as an “anti-PML-N” judge, has received flak for being “arrogant” and has repeatedly failed to end the perception that he was in cahoots with the security establishment to facilitate PTI chief Imran Khan’s ascension to power.

In case CJP Bandial takes up the audio leaks issue, questions may arise as to whether he should head the bench or not.

Had the Supreme Court bench led by CJP Bandial punished those who were involved in the surveillance of Justice Qazi Faez Isa and his family during the PTI rule, the trend of audio leaks could have stopped.

There is a need to initiate a dialogue within the Supreme Court before passing any order related to other institutions. However, CJP Bandial may take up a PTI petition for probing the audio leaks of government functionaries. The petition has not been scheduled for hearing despite passage of several months.

In October last year, Imran Khan moved the Supreme Court for the formation of a judicial commission or a joint investigation team (JIT) to investigate  “illegal” surveillance, and recording of phone calls, including audio leaks from the Prime Minister’s Office (PMO).

The petition requested the court that the surveillance of the premier’s house and the PMO, as well as data recording and audio leaks, be declared unconstitutional and “in violation of law”.

A senior lawyer told The Express Tribune that in the recent audio leak, former chief justice Saqib Nisar was referring to the case as "our case" which shows his interest in the judicial proceedings.