——– Clarifies matter of forming full Court as six-judge bench resumes hearing spy agencies’ interference case
——– Justice Minallah says State has to protect judges, independence of Judiciary
——– SC bench seeks responses from lawyers’ bodies in meddling case by next hearing
By Anzal Amin
ISLAMABAD: Any party pushing the judiciary towards a certain path is also akin to interference, ob-served Chief Justice of Pakistan Qazi Faez Isa as the Supreme Court (SC) resumed hearing on Monday the suo motu case on intelligence agencies’ interference in judicial matters.
The six-member bench, headed by CJP Isa, and including Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Jamal Khan Mandokhail, Justice Athar Minallah, Justice Musarrat Hilali, and Justice Naeem Akhtar Afghan, is hearing the case. The proceedings are being broadcast live.
Earlier, the apex court took suo motu notice of a letter written by six Islamabad High Court (IHC) judg-es.
In a startling letter written to the Supreme Judicial Council (SJC) members, the IHC judges had accused the country’s intelligence apparatus of pressurizing judges through abduction and torture of their rela-tives and secret surveillance inside their homes.
The letter, addressed to CJP Isa, Supreme Court Justices Mansoor Ali Shah and Munib Akhtar, and chief justices of the IHC and the Peshawar High Court, also questioned if there exists a state police to “intimidate” and coerce judges.
The letter, dated March 25, was signed by Justices Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan, Arbab Muhammad Tahir and Saman Rafat Imtiaz of the IHC.
The SC’s suo motu came after former chief justice of Pakistan Tassaduq Hussain Jillani recused himself from heading a one-man inquiry commission formed by the government to investigate the claims.
The situation unfolded after a group of lawyers and civil society members urged the top court to initi-ate suo motu proceedings on the matter, as it rejected the ‘powerless’ one-man commission.
Through a letter, they urged the top court to take “cognisance of the matter in its jurisdiction under Article 184(3) of the Constitution as this issue eminently relates to public interest and to the enforce-ment of fundamental rights”.
It is learnt that being chairman of the committee, the chief justice suggested taking the suo motu no-tice which was endorsed by committee members Justice Syed Mansoor Ali Shah and Justice Munib Akhtar.
In his letter sent to Prime Minister Shehbaz Sharif dated April 1, Jillani said, “Since the letter is ad-dressed to the members of the Supreme Judicial Council and its chairman, the chief justice of Pakistan, it would be violative of judicial propriety for me to inquire into a matter which may fall within the juris-diction of a constitutional body which is the Supreme Judicial Council or the Supreme Court of Pakistan itself.”
Thanking the premier and the cabinet for reposing confidence in him to head the commission, the re-tired judge stated the terms of the reference for the inquiry are not “strictly” relevant to the subject under consideration.
Justice (retd) Jillani further added that the request made in the letter is for an “institutional consulta-tion”, with the terms of the mechanism suggested in the letter. He further added that the letter may not strictly fall within the parameters of Article 209 of the Constitution.
“For the afore-referred reasons, I recuse myself to head the commission and proceed with the in-quiry.”
Addressing the debate over convening a full court or not, the CJP at the outset of the hearing clarified that a three-member committee decided to form a bench consisting of all available judges. Justice Yahya Afridi recused himself from the bench, while two judges are not available for a full court, he said.
CJP Isa remarked that the country was seriously divided. “Pulling us to one side or the other is against is also interference. Interference can be from within, without, from intelligence agencies, your col-leagues, your family member, social media, from everybody else,” CJP Isa said.
“A judge’s judgment and order shows, speaks, shouts how much interference there is or isn’t; how much independence there is or isn’t,” he added.
“I am not responsible for the history of the Supreme Court. I am only responsible from the day I be-came chief justice,” the CJP maintained.
Moving on, the chief justice asked Attorney General for Pakistan (AGP) Mansoor Awan whether he had read the recommendations submitted by the IHC judges. To which the AGP replied in the nega-tive.
Adding to the matter, Justice Minallah stated that these were not suggestions, but rather a “charge sheet”.
On the order of the CJP, AGP Awan read out the recommendations in the courtroom.
The IHC judges began by appreciating the apex court for taking suo motu notice of the matter. The judges’ recommendations include taking into account the division of power between the executive and agencies. Moreover, they deny any division among judges, asking for the impression, peddled on social media and mainstream media, to be done away with.
The recommendations further call for amending the code of conduct of the judges of the superior courts as well as district courts; completely banning meetings between judges and intelligence agen-cies’ members; any judge facing interference should inform immediately, and a permanent cell should be established in the SC and high courts where judges can submit complaints, and decisions on the complaints should be taken immediately in accordance with the law.
“We should refrain from interfering in the high court’s affairs. The outcomes of such interference in the past have been unfavourable.”
Justice Minallah noted during the hearing that the Islamabad High Court (IHC) judges had alleged “con-tinuous meddling” and asked if their recommendations were unanimous. The AGP replied that it seemed so, to which the judge observed that no judge had voiced disagreement.
The SC then ordered that the proposals made by the IHC judges be made public. Justice Isa stated, “When everything is airing in the media, we may make this public as well.”
When the chief justice inquired if a high court was not empowered by the Constitution to implement the suggestions, AGP Awan replied that it had the authority to act on all the points.
Justice Shah pointed out that IHC’s Justice Ejaz Ishaq had also sent an additional note, prompting Jus-tice Minallah to order the AGP to read it aloud.
CJP Isa wondered if the SC could order the high courts, to which Justice Minallah responded that the IHC’s proposals should be appreciated. “When there will be no answer, the judges will not be fear-less,” he said, emphasizing that the apex court should review the matter.
Justice Isa observed that the SC should limit itself to the high courts’ suggestions and not act on those made by every other person.
“I will never accept any interference from any source, and there has not been a single complaint since my assumption of this office to me or the SC’s registrar,” the top judge remarked.
He questioned if the presidents of lower judiciary bar associations “forcing their way into the judges’ chambers” did not amount to interference.
Justice Minallah emphasized, “If the state becomes the aggressor against a judge, that is what all the high courts are highlighting, and that is a serious matter.”
“The high court of Lahore is endorsing what the IHC has said […] and we all know that it is happening and has happened,” he added.
Justice Minallah highlighted that the judges “fear reporting because […] since the last hearing, what has happened to an IHC judge; his personal data which cannot be accessed by a private person was put on social media.” “That is an intimidation,” he observed.
“The state is to protect the judges and independence of the judiciary. When it becomes the aggressor, which each high court is saying; that is what is the issue and it is happening.
“It is a phenomenon that has happened for the last 76 years and this is what each high court is endors-ing. It is happening today,” Justice Minallah observed.
Justice Shah noted that the matter had landed before the SC and questioned if the apex court could “just brush aside” the matter.
“We should empower the high courts. We are, by interfering in this matter, actually empowering the high courts, the district judiciary, the entire judiciary; I don’t think it’s interference in any matter,” he observed.
Justice Shah noted there was a need to “lay down a court which is a clear firewall against all sorts of excesses” and that a “system” needed to be put in place rather than dealing with individual incidents.
Justice Mandokhail said, “Especially two of our learned members of the bench have been targeted” since the SC took up the matter. “This is not interference. This is a threat.
“Leave the high court judges aside […] the notice we have taken; what is happening with us? Can there be independence in this manner?” the judge asked.
Justice Minallah then remarked that the “presumption and entire onus were on the state” when data of judges’ family members was “stolen” from government departments “such as immigration and the National Database and Registration Authority (Nadra).
“There are judges we know to whom it is just said ‘your child studies at so and so place’ and it is the state which is doing it,” he added.
Justice Hilali wondered why all high courts did not implement the suggested actions by themselves and why they were seeking the SC’s permission.
Justice Shah observed that the high courts had “all powers, including that of contempt of court [no-tice],” stressing the need to empower each court of the country.
He said the current suo motu case was “doing wonders” as it had led to the judiciary “mustering the courage” to write the letter.
Justice Minallah termed the Balochistan High Court Bar Association’s response as “most interesting.”
“The state is to protect the independence of the judiciary. There has been a partnership between the judiciary and the establishment for the past 76 years. That culture continues,” he said.
To this CJP Isa responded, “I don’t know. At least there’s no culture here. […] If there was any inter-ference in my work and if I could not withstand the pressure, I would go home.”
He recalled that he had been the Balochistan High Court chief justice for five years and offered to ask the judges there about any alleged interference.
“Since I have been a judge here (at SC), I have fought for the independence of the judiciary from with-in,” Justice Isa asserted.
“And the greatest threat to independence was from the Supreme Court, not from the outside, in my opinion. I have lived through it; I have experienced it so these are not empty words. Please do not in-clude me in the 76 years of Pakistan’s history and there are many such persons who should not be in-cluded.
Justice Minallah agreed with CJP Isa, stating, “I haven’t condemned all. There have been exceptions.” He added that “no one could influence a single judge” during his tenure as the IHC chief justice.
Concluding today’s hearing, the SC ordered the lawyers’ bodies, which were the petitioners, to submit their responses on the matter by the next hearing.
It suggested the bar councils and associations submit a unanimous response, adding that any differing viewpoints could be mentioned separately.
Further, the apex court said that if the federal government wished to submit a response or any pro-posals, it may do so through the AGP. CJP Isa said that if the allegations “refer to any [intelligence] agency, the said agency should respond” through the AGP.
The court stated that no new petitioners would be made respondents in the case. Subsequently, the hearing was adjourned till May 7.
