Faizabad sit-in case: SC rejects govt's fact-finding committee 

Faizabad sit-in case: SC rejects govt's fact-finding committee 

Islamabad (Web Desk): The Supreme Court (SC) on Wednesday rejected the fact-finding committee formed for the implementation of the apex court's February 6, 2019 verdict in the Faizabad sit-in case.

The development comes as a three-member SC bench headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justice Aminuddin Khan and Justice Athar Minallah resumed hearing a set of review petitions against the 2019 verdict.

The fact-finding committee was constituted by the government, on Friday, to investigate the "role and directions" of all "concerned" officials in the management and handling of the sit-in in 2017.

The top court ordered the Attorney General for Pakistan (AGP) Mansoor Usman Awan to form a new inquiry commission.

At the outset of the hearing,t he order of the previous hearing was read out by the AGP.

During the hearing today, Chief Justice Qazi Faez Isa said the apex court wanted to know who was behind the Faizabad sit-in.

Referring to former Pemra chief Absar Alam's statement on “media coercion” during the 2017 Faizabad sit-in, the CJP observed that all institutions, including the Election Commission of Pakistan (ECP), were not independent.

Authored by Justice Isa years before he took oath as the CJP, the searing judgement had instructed the defence ministry and the tri-services chiefs to penalise personnel under their command who were found to have violated their oath.

The CJP said Absar had made serious allegations against the employees of the Ministry of Defense and asked if the government still wanted to withdraw its review petition.

The AGP told the apex court that a fact-finding committee has been formed.

At this Justice Isa remarked, “If Absar Alam's allegations are true, then this matter is related to you. When was the fact-finding committee established?”

AGP informed the bench that the said committee was formed on October 19, and the first meeting took place on October 26. He further added that the committee reports to the Ministry of Defence.

The CJP raised concerns about the absence of a formal report or notifications that validated the committee’s establishment and criticised the committee's purported reporting to the Defence Ministry as an exercise devoid of substance.

"The terms of reference (TORs) of the fact-finding committee are akin to throwing dust in the eyes," Justice Isa remarked, highlighting his dissatisfaction with the vague and inconclusive nature of the committee's objectives.

Furthermore, Justice Athar Minallah questioned the country's alignment with constitutional principles and the government's sluggishness in executing court decisions.

CJP emphasised how important it is for the bench to uncover the masterminds behind the protest to know their latent motives.

"The motives behind the sit-in were different despite the cancellation of the law change," Justice Isa pointed out and directed that there should be a proper investigation into the persistence of the protest despite legal alterations.

Justice Faez Isa also lamented the billions in losses suffered and the ignorant attitude of the government and told the AGP that, "you have broadened the TORs so much that everyone will be acquitted."

He also highlighted that the TORS of the fact-finding committee did not mention the exact incident being probed. "Our job is to order and your job is to implement," the CJP said.

Justice Athar Minallah asked who had constituted the committee to which the AGP replied that the federal government had formed it.

"Was the approval of the federal cabinet taken? Was this committee formed under the Inquiry Commission Act?" the judge asked. CJP Isa, on this note, said that if this was not so, then the notification of the commission was a mere piece of paper.

"This committee too is illegal," the CJP stated and then proceeded to ask why the inquiry was not conducted under the Inquiry Commission Act. “Let’s suppose that the committee summons Absar Alam but he doesn’t show up. What will you do then?” he asked.

A committee formed under the Inquiry Commission Act has powers and all institutions are bound to cooperate with it, the chief justice pointed out. “No one will appear before your committee,” he told the AGP.

The bench further emphasised the paramount need for upholding constitutional supremacy, with CJP Isa stressing the ripple effect of individual actions and their broader societal consequences. The probe was directed to uncover the reasons behind the 2019 verdict appeals and highlighted the opportunity to conduct the inquiry through an individual respectful of the Constitution.

The CJP raised concerns about institutional independence in light of Absar’s statement, highlighting its implications on institutions like the Election Commission of Pakistan (ECP). He also questioned the scenario of someone engaging in rioting in Canada and returning to Pakistan, while pointing out the misrepresentation that tarnishes the essence of Islam.

The bench pressed for a comprehensive investigation into the legality and functioning of the fact-finding committee, raising doubts about its legal basis, procedural integrity, and the absence of explicitly documented authorisations or established methodologies.

While Justice Minallah hailed the Faizabad verdict as a "landmark judgment," CJP Isa considered it a "simple order," underscoring that the government, regardless of its quality, was elected by the public at that time.

The apex court bench rejected the existing fact-finding committee and urged the establishment of a new committee to scrutinize the responsible parties behind the Faizabad sit-in.

Following this, PEMRA Chairman Saleem Baig was summoned regarding Absa Alam's note. Upon Baig's appearance, the CJP highlighted Absar’s submissions and urged serious consideration of the court proceedings. Baig maintained ignorance about the ex-PMRA chairman's issues and mentioned that he was appointed six months after Alam's departure.

"Before becoming the PEMRA chief, I was a grade 20 principal officer," he added.
Justice Isa questioned Baig about the regulatory body's implementation of the 110-page judgement and inquired whether rioting and arson were not within the realm of freedom of expression.

"Tell us one paragraph that PEMRA implemented from the 110-page judgment," Justice Isa said. Rioting and arson, he continued, were not freedom of expression.

"Are two TV channels still prohibited in the Cantt area?" the CJP asked.

Moreover, the judges pointed out the prevalence of a common culture wherein individuals, on vacating positions, often cited pressures as justification for their actions. "You say there is no pressure on you, but whenever people here left their positions, they say there was a lot of pressure on them," he remarked.

At one point, the CJP asked Baig about his salary to which the latter said he was paid Rs400,000. “Were you the PEMRA chairman when Faizabad dharna was underway?” Justice Isa further inquired, noting that Baig’s name was included in the case.

He then reprimanded the PEMRA chief for misrepresenting that he was appointed later and noted that Baig could be charged with contempt of court for failing to implement the verdict.

The CJP noted discrepancies in Baig's appointment and expressed concerns about the prolonged duration of his tenure, considering potential implications regarding the failure to implement court directives. Baig clarified that his reappointment explained the extended tenure.

Justice Faez Isa stressed the need for an unbiased inquiry and the imperative to identify the orchestrators behind the Faizabad sit-in.

The top court directed the dismissal of the current fact-finding committee and urged the formation of a more transparent, accountable investigative body.

The government assured the court of providing details about the new committee within two days.

The apex court decided to revisit the Faizabad sit-in case on September 28 following a series of review petitions submitted against its previous ruling.

This development goes back to November 2017, when the SC took suo motu notice of the three-week-long sit-in by Tehreek-e-Labbaik Pakistan (TLP) on Faizabad Interchange, which was held against a change in the finality-of-Prophethood oath, in the Elections Act 2017. The sit-in was called off after the protesters reached an agreement with the government.

A year later on November 22, 2018, a two-judge bench consisting of Justice Isa and Justice Mushir Alam reserved their ruling.

On February 6, 2019, the Supreme Court’s two-member bench of the apex court comprising the now-CJP Isa and Justice Mushir Alam issued a 43-page judgement.

The then-federal government, along with other petitioners, filed review pleas contesting the apex court's judgement delivered by the incumbent Chief Justice Qazi Faez Isa regarding the Faizabad sit-in case.

The pleas were moved against the verdict by the Ministry of Defence, the Intelligence Bureau (IB), the Pakistan Tehreek-e-Insaf (PTI), PEMRA, the ECP, the Mutta­hida Qaumi Movement (MQM), Sheikh Rashid and Ijazul Haq.

However, most of the petitioners, including the government, IB, Pemra and PTI, withdrew their pleas, prompting the CJP to ask “why is everyone so afraid to speak the truth”.

At the last hearing, the SC had sought fresh disclosures from anyone regarding the protest by a religious group that had brought the capital and the garrison city to a grinding halt for 20 days.

The CJP had said anybody who was affected by the protest, could approach the apex court to submit affidavits revealing new information but in writing.

In response, Alam submitted a statement in the top court a day earlier wherein he alleged that a former head and officers of an intelligence agency were responsible for "manipulation" of TV news channels and explained the dire consequences of not acceding to their instructions.

He claimed that then ISI Director General (DG) Major General Faiz and/or his subordinates controlled the policies of TV channels through unlawful means by changing their numbers and moving them to the tail end of cable networks if they refused to follow the instructions.

During the hearing today, Justice Isa said he had some questions regarding Alam’s note submitted to the SC yesterday. “You said there are some rebellious elements in the media,” he said.

Absar Alam responded that “people of intelligence agencies” used to reach out to cable operators. “A PEMRA member had received a call which was recorded,” he said.

When asked about the name of the caller, the former PEMRA chief said he could not confirm it because people often called with fake identities. Alam added that that there were petitions against him in three high courts.

"I was removed as PEMRA chairman by the Lahore High Court (LHC) on December 18. You said to bring the truth and so I did,” Absar Alam said, adding that it was known among journalists that whoever filed a petition against me in the LHC was a person of the agencies.

The ex-PEMRA chief further recalled that he was given verbal orders to sack Najam Sethi after the latter revealed on a talk show that institutional corruption was taking place. "I was removed for the same reason," he added.

Absar Alam also said that he had written a letter to the ex-army chief after he had received a call.

"If tomorrow the government forms a commission, will you record your statement?" Justice Isa asked. Alam swore that he would take all the names before the commission.

Meanwhile, the chief justice said the committee should also call those who were accused and give them a chance for cross-examination.

Today, the bench heard arguments from AGP Mansoor Usman Awan, Absar Alam, the ECP and PEMRA.

In an order announced later in the day, the court dismissed review pleas filed by the IB, PTI, the defence ministry, MQM and Ijazul Haq on grounds of withdrawal.

The top court also issued notices to Sheikh Rashid over failure to appear in court and adjourned the hearing till November 15.