State instead of ‘threatening’ judges must protect them, remark SC judges

The Supreme Court’s six-judge bench led by Chief Justice of Pakistan (CJP) Qazi Faez Isa on Tuesday adjourned hearing of the case pertaining to allegations levelled by six Islamabad High Court (IHC) judges regarding interference by the intelligence agencies in judicial matters after Justice Athar Minallah remarked that the State must protect the judges and the judiciary’s independence, reported 24NewsHD TV channel.

The bench comprised of CJP Isa and Justices Justices Syed Mansoor Ali Shah, Jamal Khan Mando­khail, Athar Minallah, Musarrat Hilali and Naeem Akhtar Afghan.

Justice Yahya Afridi, who was among the seven-member bench that had presided over the last hearing, had rescused himself from the suo motu case. During the last hearing, Justice Qazi Isa had asserted that “any attack” on the judiciary’s independence would not be tolerated while hinting at forming a full court to hear the case.

The apex court has also taken up more than 10 petitions and applications seeking its intervention, which were filed by various bar associations and had been clubbed together.

As the hearing started on Tuesday, CJP Isa clarified that the SC’s bench formation committee had decided that all available judges in Islamabad should immediately convene. “There was no pick and choose; whoever was available was put together,” he observed, adding Justice Afridi had recused himself. Recalling that he had hinted at a full court hearing the matter, Justice Qazi Isa said that it could not be convened as two judges were unavailable.

The CJP remarked there was so much polarisation in the country and that “people may not be so interested in the independence of the judiciary but in their own particular viewpoint to prevail”.

The CJP maintained “If somebody can impose a will upon this court, that is also interference; interference can be from within, from without, from intelligence agencies, from your colleagues, from your family member, from social media, from everybody else.”

“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 said and remarked “I am not responsible for the history of the Supreme Court. I am only responsible from the day I became chief justice. I have gone ahead with an inclusive approach.”

The CJP recalled that he had summoned a full court meeting which had not been done so in years.

The chief justice then asked AGP Mansoor Usman Awan if he had gone through the recommendations made by the IHC judges, to which the latter replied in the negative. Justice Isa then asked Awan about how to proceed with the matter.

Here, Justice Minallah remarked: “These are not recommendations or suggestions but a charge-sheet.”

After the AGP read aloud the proposals, Jusitce Isa observed, “We should not interfere in the high court’s work. The results of interference in high courts’ matters in the past have not been good.”

CJP Qazi Isa ordered making public the recommendations made by the Islamabad High Court (IHC) in the wake of the letter written by six of its judges to the Supreme Judicial Council (SJC) in which they had accused the country’s intelligence agencies of interfering in their work by intimidating and harassing them.

The CJP said it categorically that the apex court would not interfere in the matters of the high court. “Sorry to say. But my opinion is that a judge who can’t bear ‘pressure’ must resign,” he remarked.

For one month, the top judge said, he remained the Balochistan High Court (BHC) chief justice, and he knew fully well what was meant by the ‘interference’. “Mostly it is the SC that exerts pressure on judges,” he said. 

However, he made it clear that he would not allow anybody to encroach upon the freedom of the judiciary.

Justice Isa further said that one of the judges on the bench, Justice Yahya Afridi, had decided to recuse himself from the case.

He lamented that some people were defaming the judiciary on social media and other platforms. “Those criticizing the judiciary have nothing to do with its independence,” he opined.

The CJP also made it clear that he was not responsible for what had happened in the past. “I am only responsible for the developments that took place after I took oath as the chief justice of Pakistan,” he said categorically.

Justice Isa was of the view that the apex court had failed to discharge its functions. “But thanks to the parliament which saved the SC by enacting the Practice & Procedure Act,” he said.

He lamented that when the SC had first constituted the commission to probe the judges’ letter, the former CJP who was heading it was subjected to vilification. “Consequently, he had to excuse himself from heading the commission,” the CJP recalled.

Justice Jamal Khan Mandokhel said it was unfortunate that two members of the bench were subjected to character assassination.

Justice Musarrat Hilali wondered why the IHC judges did not deem it proper to act upon their own recommendations.

Justice Athar Minallah said it was true that pressure was exerted on judges. “It is unfortunate that the IHC judge Justice Babar Sattar is being maligned on social media,” he remarked.

The CJP said even bureaucrats received phone calls from those at the helm of affairs. “Some obey the orders, while others do not,” he said, adding, “And those who do not are made officers on special duty (OSDs).”

He said that at the first hearing of the case, SC could not form a full-court bench on account of the non-availability of judges.

Justice Mansoor said not all judges were as brave as the CJP was. “Some judges are like me.”

Justice Minallah said whenever a judge speaks the truth, he was subjected to character assassination. “What did the government do after the apex court’s verdict in ex-judge Shaukat Siddiqui’s case?” he questioned.

Then addressing the attorney general of Pakistan (AGP), he said that the suggestions put forward by the IHC judges were in fact a charge sheet. 

The judge was of the view that there was a need to look into the points which the judges had raised in the letter.

The CJP, however, disagreed with him and said that the court should restrict itself only to the suggestions made by the IHC, and should not go into details.

Justice Isa went on to say that the judiciary should also do some introspection so that interference in its affairs could be stopped. “Forming a joint investigation team (JIT) on interference by the intelligence agencies will amount to degrading the judiciary,” he opined.   

The chief justice stressed the need for chalking out a comprehensive strategy to stop interference in judicial matters.

He said ever since he had become the CJP, he had heard not a single instance of meddling in courts affairs. “Anyhow, let bygone be bygone, and move forward.”

He, however, acknowledged that courts, including the apex court, were used for political purposes. “There are several instances of lawyers and politicians trying to influence courts’ proceedings by holding meetings with the chief justices inside their chambers,” he remarked.

“In my opinion, there is also interference by the courts. When we appoint a monitoring judge, does not it amount to an interference?”

Similarly, he opined, the formation of JITs, comprising officials of the intelligence agencies, was also an intervention. 

Justice Minallah said that if there was interference in the matters of courts from within the judiciary, then this meant that the institution was weak.

The judge said that the Lahore High Court (LHC) had seconded the suggestions put forward by the IHC. “It is a fact that even in the past, there was interference in judicial matters which continues to this date.”

Justice Mansoor Ali Shah said that today there was a golden opportunity for the SC to put an end to all types of interference and intimidation of judges for good. “The IHC could have dealt with the matter on its own; but it did not,” he said.  

The judge was of the view that if the SC devised any procedure in this regard, then this would strengthen the judiciary. 

He stressed the need for building what he called a ‘firewall’ to ward off meddling in court affairs.

Justice Mandokhel said set the IHC judges aside. “Who is responsible for what is happening to us?” he asked.

Justice Minallah said it was unfortunate that the person speaking the truth in Pakistan invited trouble for himself. “Even personal matters of judges are made public without their consent,” he lamented.

“Information pertaining to judges is stolen and even the reputation of their family members is damaged,” he said.

Justice Minallah remarked that the IHC judges had alleged “continuous meddling” and asked if their recommendations were unanimous. AGP Awan replied that it seemed so, at which the judge observed that no judge had disagreed. Justice Minallah emphasised: “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 further highlighted that the judges harbour fears regarding reporting such incidents. In an apparent reference to IHC’s Justice Babar Sattar, he said: “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 said “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 endorsing.”

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 added.

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.”

He said “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 remarked that the “entire onus was on the state” when data of judges’ family members was “stolen” from government departments, such as the National Database and Registration Authority (Nadra). “There are judges we know who are just told ‘your child studies at so and so place’ and it is the state which is doing it,” he added.

Justice Mansoor stressed the need for putting an end to all types of pressure tactics. “How unfortunate that nobody could use his cellphone with freedom,” he said, adding, “If somebody fears arrest or any other kind of reprisal, then there is a problem.”

He, however, said he never came across any type of interference during his entire career.  

Justice Minallah said some powerful people even told judges they knew about the whereabouts of their children.

He asked the government to provide protection to judges.

He said ever since the creation of Pakistan, it was said that the judiciary and the establishment were in hands in gloves with each other.

“However, I was not pressurized by anybody when I was the chief justice of the Islamabad High Court,” he said.

Justice Minallah said that at the same time, there was a need to ensure that the image of Pakistan Army was not tarnished. “Our army is the defender of the country’s frontiers,” he remarked. 

The CJP adjourned the hearing until May 7, asking all the parties to submit their submissions as it was not possible for the apex court to hear everyone.

Reporter: Amanat Gishkori