April 4, 2024
ISLAMABAD – Chief Justice of Pakistan (CJP) Qazi Faez Isa on Wednesday asserted that “any attack” on the judiciary’s independence would not be tolerated as he hinted at forming a full court to hear a suo motu case pertaining to allegations of interference in judicial affairs.
He made the remarks as the Supreme Court took up the case pertaining to allegations made by six Islamabad High Court (IHC) judges regarding interference by the country’s security apparatus in judicial matters.
A seven-member bench — comprising CJP Isa and justices Syed Mansoor Ali Shah, Yahya Afridi, Jamal Khan Mandokhail, Athar Minallah, Musarrat Hilali and Naeem Akhtar Afghan — presided over the hearing that was streamed live on the SC’s website and its YouTube channel.
Last week, it emerged that six Islamabad High Court (IHC) judges — out of a total strength of eight — wrote a startling letter to the Supreme Judicial Council (SJC) members, regarding attempts to pressure judges through the abduction and torture of their relatives as well as secret surveillance inside their homes.
The letter was signed by judges Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan, Arbab Muhammad Tahir and Saman Rafat Imtiaz.
A day later, calls emerged from various quarters for a probe into the investigation, amid which CJP Isa summoned a full court meeting of the SC judges.
On Thursday, Prime Minister Shehbaz Sharif met CJP Isa, where the two decided to form an inquiry commission, which was later approved by the federal cabinet.
However, lawyers and civil society members — in a joint letter — had 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 enforcement of fundamental rights”.
On Monday, ex-CJP Tassaduq Hussain Jillani — tasked to head the one-man inquiry commission — recused himself from the role, urging Justice Isa to “resolve the issues raised in the letter at the institutional level”. At the same time, the top court took suo motu notice of the matter and constituted a seven-member bench to hear the case.
A day ago, Barrister Aitzaz Ahsan and the Lahore High Court Bar Association (LHCBA) filed separate but similar petitions to join the suo motu proceedings.
Today, Attorney General for Pakistan (AGP) Mansoor Usman Awan appeared before the SC along with Hamid Khan, who was present as ex-premier Imran Khan’s counsel. Ahmed Hussain appeared as Aitzaz’s lawyer while SC Bar Association (SCBA) President Shahzad Shaukat was also present.
The hearing was adjourned till April 29. During the hearing, CJP Isa said that “we may constitute a full court next time”, adding that the top court judges would discuss the matter.
The hearing
At the outset of the hearing, Hamid informed the court that he had requested to be made a respondent in the case. At this, CJP Isa remarked, “Gone are the days when it was the chief justice’s will. We have constituted a committee to fix cases [for hearing].”
He noted that the court had not received Hamid’s petition, adding that the committee would decide on the matter once the plea was received.
The CJP further said it was “inappropriate” that petitions were reported in the media before they were even filed.
“When we talk about pressure being exerted, is this also exerting pressure on us in a way?” he wondered, adding that he never gave in to anyone’s pressure.
The top judge also expressed his displeasure at lawyers calling for a suo motu notice: “The lawyers are saying to take a suo motu [notice]; then they should leave their practice.”
Justice Isa said that Hamid could not be considered a “representative of lawyers” as the SCBA president was already present for that role.
AGP Awan then read out the press release issued by the top court after the meeting between the CJP and PM Shehbaz on March 28.
Justice Isa recalled that he met the IHC judges the day he received their letter. “If we had not given importance to this matter, then could this meeting not have been held after Ramazan?” he asked.
The chief justice then observed that a full court acted as an “administrative body and does not play a judicial function”.
Referring to his and Justice Shah’s meeting with PM Shehbaz, Justice Isa said he met the premier — who he said was the “state head as he received the most votes” from the National Assembly — as the “administrative head” of the SC. He added that the meeting was not a “chamber or at-house meeting” but an “official administrative” one.
AGP Awan highlighted that inappropriate comments were made on social media about the inquiry commission formed to probe the claims.
Noting that ex-CJP Nasirul Mulk’s name was also considered to head the body, the AGP recalled that PM Shehbaz had met Jillani, who said he would decide whether or not to head the commission after reading the Terms of Reference (ToR).
At one point, the CJP remarked, “If there is any kind of attack on the judiciary’s independence, I would be at the frontline [in defending judiciary] and for sure, my fellow judges would be standing with me in this. And we never accept interference.
“If someone has another agenda to do so and so, then they may become the Supreme Court Bar president or the chief justice and enact his will. We will not tolerate pressure of this kind,” he added.
AGP Awan then said that an inquiry commission had “great powers”, including to initiate contempt proceedings. “An impression was given on the media as if the federal government wanted to make a commission of its own wish,” he added.
To this, CJP Isa remarked, “Who can serve in such an environment? If a pious man is attacked, then he will leave and say ‘you handle this’. Such allegations were levelled that we were ashamed to have nominated him.”
Noting that “baseless criticism” and “personal attacks” were made against Jillani, the top judge said the former CJP was not heading the commission “for money”.
“Whatever was said about Tassaduq Jillani on social media, he recused [from heading the commission] after that,” Justice Isa observed.
AGP Awan then read out aloud Jillani’s letter to the prime minister recusing himself, emphasising that the commission’s “entire proceedings” were to be judicial. He recalled that CJP Isa had suggested two names to head the body — Mulk and Jillani.
“The impression that the SC has given its powers to the government or the commission is completely wrong,” CJP Isa said. He directed the AGP to read out Article 175 of the Constitution, adding the apex court’s powers were stated from Article 184 onwards.
“According to the Constitution, the SC does not have the authority to form an inquiry commission,” CJP Isa said, adding that the federal government was empowered to do so.
AGP Awan urged the chief justice to look at the portion of the IHC judges’ letter pertaining to the SJC.
“We have left the Constitution [aside]”, Justice Isa remarked, asking, “How can the powers of the SC be given to someone else?”
“Every institution should remain within its limits,” the top judge asserted. “It might be that in the past our institution might have gone beyond its limits, but that is not the case now,” he noted.
CJP Isa reiterated that according to the Constitution, the SC cannot form an inquiry commission. However, the federal government had the authority to form an inquiry commission, he noted.
AGP Awan contended that the federal government was not ready to compromise on the independence of the judiciary. “From here, verdicts were given, JITs were formed [and] monitoring judges appointed against the law. What happened between 2017 and 2021 is in front of everyone,” he said.
He also recalled cleric Agha Iftikharuddin Mirza’s “death threat” to Justice Isa in 2020, at which the CJP said to set that aside.
However, the AGP asserted: “Talking about this is very important. The history should be kept before everyone. Mrs Sarina Isa went to get a first information report (FIR) registered but it was not. The then-federal government referred the matter to the Federal Investigation Agency (FIA).
“Sarina Isa recorded a statement about Mirza Shahzad Akbar and Lt. General (rtd) Faiz Hameed [but] the federal government at the time took no action,” he added, noting that two CJPs retired during the period while CJP Isa took up the matter within 24 hours.
“We have the prime minister’s full support on this matter,” the attorney general assured the apex court.
During the hearing, the case of former IHC judge Shaukat Aziz Siddiqui was also mentioned. Justice Isa said that the SC’s verdict on his case was “benefitting” to the six IHC judges who wrote the letter.
“Pressure on judges also extends to fellow judges, their family members, children and friends. These days, there’s a new epidemic of social media and there is pressure from the media as well,” CJP Isa noted.
CJP Isa noted that although the judges’ letter mentioned family members of the judges being pressured, it did not mention who directly pressured the judges.
The chief justice further noted that the IHC judges had the constitutional power to initiate contempt proceedings, which could be used. “I cannot use another court’s powers [to initiate] contempt of court proceedings,” he said.
Recalling that the IHC judges’ letter came during the tenure of former CJP Umar Ata Bandial, Justice Isa said he was “not consulted or informed of the matter” by his predecessor.
CJP Isa said he met with the IHC judges as soon as he was informed by his secretary that they had come to meet him. “I am not an executive but I still met with the judges,” he added.
“If judges issue a notice of contempt of court, then everyone must appear to provide an explanation,” Justice Isa observed.
He remarked that he took notice of the statement made by more than 300 lawyers but did not see any of their signatures on it. “In this way, you can write mine and your name as well,” the chief justice quipped.
“Either have faith in democracy or not; it can’t be that ‘only my [directives] are followed’. Next time, you can win the election and come,” CJP Isa remarked.
Addressing the AGP, Justice Minallah mentioned Mirza’s threat against Justice Isa and asked, “Did you see whether it reached its logical conclusion or not?”
Justice Mandokhail, referring to the 2019 reference against CJP Isa, said “the then-PM (Imran Khan) admitted it was a mistake” and asked what action should be taken on it.
CJP Isa then remarked, “Mistakes have been made before and still continue to happen but we have shown our accountability.”
Justice Minallah said “everyone talks” of accountability but no one actually does it. “If your government would have taken this case to its logical end, then you could have talked about it.”
At this, the CJP said, “That case pertained to me. I do not want to give an impression that I am exerting pressure.”
Addressing the AGP, Justice Minallah said, “You have rightly said that there was political engineering till some time and probably, the perception is that this court was also involved. But what the letter is saying is that that is continuing and this is of utmost importance.”
AGP Awan then said that the presidential reference against Justice Isa came because of the SC’s 2019 verdict on the Faizabad sit-in. He then said the government should “fulfil its duty” of accountability.
Justice Mandokhail said that one way to do so was that the “interference stops here and does not happen in the future”.
“We cannot bury our heads in the sand like an ostrich. A system is needed on this matter from a civil judge up to the SC. The series of interference in judiciary must be put to end forever,” Justice Shah noted.
Justice Afghan observed that the government was violating court orders by “taking support” from the Maintenance of Public Order (MPO) ordinance.
“We can close our eyes and give an impression as if we do not know anything. The question that has been there for the past 76 years, has come in the judges’ letter now,” Justice Minallah remarked.
CJP Isa then asked the SCBA president to come to the rostrum. “Can the SC itself declare some Mr X as responsible for interference?” he asked. “How can we investigate? We will have to get the inquiry conducted from someone,” he added.
Shaukat replied that the SCBA was in favour of forming an “inquiry commission for the same reason”. “No one else gave any alternative solution either,” he added.
Towards the end of the hearing, Justice Isa “clarified” that the reason for not calling a full court for the suo motu hearing was that only the seven judges were present in Islamabad.
“Rest of the judges […] some are in Karachi and some in Lahore,” he added.
“We may constitute a full court next time,” he said when talking about the next hearing, adding that the SC judges would discuss the matter. “There is seriousness at every junction,” the top judge asserted.
He noted that it was yet to be seen if some petitions, including the one filed by the Pakistan Bar Council, were fixed for hearing by the SC committee. CJP Isa then said that as the other SC judges were set to return after Eidul Fitr, the hearing may be adjourned for after that.
“Consider today’s order that we are not tolerating any interference,” CJP Isa stated. He then asked if there was any objection on the suo motu notice, specifically asking Shaukat if he supported it, to which the latter replied in the affirmative.
AGP Awan then highlighted “three aspects” of the case: “If there is anything that can be done through the code of conduct — SJC; guidelines to the high courts; through you — and if there is any inquiry that has to take place that cannot happen in these proceedings and for which you can form some mechanism, you have our full support for that.”
The CJP then said, “I am in Lahore for a week and then in Karachi for another so my return tentatively is on April 29.” He asked if April 29 was convenient for Awan and Shaukat, adding that it may be changed after asking about “other judges’ convenience”.
“We will then try to end this [case] by holding day-to-day hearings,” the top judge added.
Contents of letter by IHC judges
Dated March 25, the letter was signed by IHC Justices Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan, Arbab Muhammad Tahir and Saman Rafat Imtiaz.
It mentioned seven instances of alleged interference and intimidation “to influence the outcome of cases of interest” by the intelligence officials, pointing out that when two out of three judges in the bench hearing the plea to disqualify PTI leader Imran Khan for concealing his alleged daughter opined that the case was not maintainable, they were pressured by “operatives of the ISI” through friends and relatives.
The situation got so stressful that one of the judges had to be admitted to hospital due to high blood pressure, the letter said.
According to the six judges, the matter was brought to the notice of the IHC chief justice and the then-CJP. The former informed the judges that he had “spoken to the DG-C of ISI and had been assured that no official from ISI will approach the judges of the IHC”.
The letter complained that “interference on the part of intelligence operatives” continued even after IHC CJ’s assurance.
It also referred to the abduction of an IHC judge’s brother-in-law by armed men who claimed to be ISI operatives. The victim was “administered electric shocks” and “forced to record a video” making false allegations, apparently against the judge.
“Subsequently, a complaint was filed against the judge of IHC before the SJC, accompanied by an orchestrated media campaign to bring pressure to bear upon the judge to resign.”
The letter revealed that in May 2023, an IHC inspection judge reported to the chief justice that district court judges were being intimidated and crackers were thrown into the house of one additional district and sessions judge.
The judge was even called to the IHC to verify the claims which he confirmed. But instead of probing the allegations, the judge “was made officer on special duty and transferred to IHC, before being sent back to Punjab as he was a judicial officer on deputation”.
The letter said that last year, during routine maintenance, an IHC judge found that his official residence had been bugged with spy cameras concealed in his drawing room and bedroom.
When data from surveillance equipment was recovered, it showed that “private videos of the judge and his family members” were stored. “The matter was brought to the attention of the IHC chief justice. There has been no determination of who installed the equipment and who is to be held accountable,” the letter added.
Along with their letter to the SJC, the six judges also attached copies of letters written to Justice Farooq on May 10, 2023 and Feb 12, 2024.
The letters mentioned, among other complaints, efforts of Inter-Services Intelligence (ISI) personnel to pressurise IHC judges and probe into the tax records of at least one judge “to seek a certain outcome”.
They added that it was imperative to determine whether there was a “policy on the part of the executive … implemented by intelligence operatives” to intimidate judges.
“[The] allegations of interference by operatives of ISI have been dealt with and relief has been granted to a former judge of IHC who was wronged. We believe that while such action was necessary, it may not be sufficient,” the letter said about Justice Siddiqui’s case.
The judges noted that the SJC’s code of conduct for judges did not outline the response to such incidents “that are tantamount to intimidation and interfere with judicial independence”.
They called for a judicial convention to discuss the interference of intelligence officials “that undermines independence of the judiciary”.
The consultation would help the Supreme Court to determine a course of action that judges could take “when they find themselves at the receiving end”, the letter said.