IHC judges’ letter: Justice Minallah says ‘truth kept hidden for 76 years’

Published May 7, 2024
Supreme Court on May 7 resumes hearing a suo motu case pertaining to allegations of interference in judicial affairs. — DawnNewsTV
Supreme Court on May 7 resumes hearing a suo motu case pertaining to allegations of interference in judicial affairs. — DawnNewsTV

Justice Athar Minallah on Tuesday remarked that the “truth was hidden for 76 years” as the Supreme Court resumed hearing a suo motu case pertaining to allegations regarding interference in judicial matters.

A six-member bench — headed by Chief Justice of Pa­­kistan (CJP) Qazi Faez Isa and also including justices Minallah, Mansoor Ali Shah, Jamal Khan Mando­khail, Musarrat Hilali and Naeem Akhtar Afghan — is hearing the case about a letter penned by six Islamabad High Court (IHC) judges alleging meddling in judicial affairs by the country’s security apparatus.

The proceedings are being streamed live on the SC’s website and its YouTube channel.

In late March, six 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 had emerged from various quarters for a probe into the investigation, amid which CJP Isa summoned a full court meeting of the SC judges.

In a meeting, Prime Minister Shehbaz Sharif and CJP Isa had decided to form an inquiry commission, which was later approved by the federal cabinet.

However, 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.

Justice Yahya Afridi, who was among the seven-member bench that presided over the last hearing, had recused himself from the case. At the previous hearing, CJP 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.

Besides the suo motu, the SC 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.

Last month, an IHC full court decided to introduce several measures, including the reactivation of “empo­wered” inspection teams to put an end to the alleged meddling. Later, a four-point “unanimous proposal”, signed by all eight IHC judges, was issued that largely relied on existing laws to counter any interference.

At the previous hearing, CJP Isa had noted that the “five high courts have filed their responses/proposals/suggestions” in the case.

Justice Minallah had observed that the Lahore High Court was “endorsing what the IHC has said”. Meanwhile, the Peshawar High Court had proposed legislation for stipulating the respective mandate of intelligence agencies, noting that interference in the “working of superior judiciary by executive organs of state is an open secret”.

The SC had ordered the petitioners — bar councils and associations — to submit their response by today. It had also said that the federal government and any intelligence agency concerned with the allegations could respond through the attorney general of Pakistan (AGP).

Today, AGP Mansoor Usman Awan appeared before the court. Riazat Ali appeared as the Pakistan Bar Council’s (PBC’s) lawyer while Khawaja Ahmed Husain was present on behalf of Aitzaz Ahsan.

The hearing

At the outset of the hearing, AGP Awan requested the court for more time to present his arguments as he had not received a copy of the April 30 hearing.

Stating that he also had to speak with Prime Minister Shehbaz Sharif on the matter, he sought time till tomorrow.

CJP Isa then inquired the counsels of the bar councils and associations how long they would take to present their arguments.

The top judge said that first, counsels representing lawyer organisations would be heard and then those who are pleading on behalf of individuals.

Upon Justice Isa’s directive, the AGP then read aloud the short order from the last hearing, as well as an additional note penned by Justice Minallah.

“As highlighted by all the high courts, this is the most serious and grave matter undermining the independence of the judiciary, which cannot be trivialised,” he quoted Justice Minallah’s note as saying.

At one point, Justice Minallah remarked that the federal government should “clarify its position”.

The CJP then summoned the PBC lawyer to the rostrum, noting that its members had submitted separate responses and could “not come on a single page even for the judiciary’s independence”.

Justice Minallah asked the counsel if it would not have been better to summon a meeting and agree on a unanimous response. “Whatever their opinion was, it is equally important,” he added.

The chief justice then remarked, “If the goal is the same… there is no controversial or political matter […] surely you both would be standing on the same side.”

Reading out an excerpt of the IHC judges’ letter pertaining to the SJC, the PBC lawyer said that the “segment may be referred to the SJC in order to provide guidance and some appropriate amendments or insertions may be made to the code of conduct for judges regarding their interactions with the executive in such circumstances”.

Noting the allegations in the letter regarding a secret camera in a judge’s house, Ali said the alleged offences fall within the scope of criminal offences.

The PBC suggested the formation of a judicial commission comprising one or more sitting judges to probe the matter to “thoroughly investigate the allegations and fix responsibility”, the lawyer stated.

“Nevertheless, judges of the honourable high courts and subordinate courts possess the authority to prosecute any individuals who interfere with the judicial work under section 228 of the Pakistan Penal Code,” Ali said.

“It is imperative to establish a precedent for prosecuting such individuals to serve as a deterrent in society and uphold the sanctity of the judicial forces,” he emphasised. The counsel then read out section 228 of the PPC and 482 of the Code of Criminal Procedure.

At one point, Justice Minallah observed, “One of the high courts has gone to the extent of saying that it’s a phenomenon which amounts to the subversion of the Constitution. The PBC has probably not formulated its recommendations while considering those reports.

“Speaking for myself, it is not just the six judges’ letter; they have highlighted a formula which has existed,” he added, asking what deterrence can be created when the Faizabad sit-in judgment had also failed to do so.

The counsel then said “judges should be encouraged to exercise existing laws”, at which CJP Isa summarised that the PBC was suggesting a probe and that the judges use the criminal laws to deal with the issue.

At this point during the hearing, Supreme Court Bar Association (SCBA) President Shahzad Shaukat came to the rostrum and stated that the remarks made in the last hearing pertaining to “superior court judges being compromised” were “eroding public trust”.

To this, Justice Minallah said, “We have lied for 76 years [and] hidden the truth, which has absolutely eroded our credibility.”

“The truth should come from somewhere else. After sitting here, you’re actually accepting that you were complicit,” the SCBA president said, at which Justice Minallah remarked, “It is not I who said it, it is the attorney general who said it.”

Shaukat said it was “deeply concerning” that an April 29 judgment penned by Babar Sattar stated that the IHC judges’ letter was “not in the nature of a complaint […] it was a confidential intra-institutional correspondence that got leaked to the media and has attracted public debate”.

“Urgent inquiry is necessary to determine how the letter was publicised without first being addressed to the chairman and the members of the SJC. The individual responsible for its leakage must be identified and held accountable,” the SCBA president asserted.

He further contended that the association “reiterates that any attempts by other branches of the government to undermine this independence are unconstitutional and detrimental to the rule of law”.

“The SCBA urges the SC to reassert its constitutional authority and to ensure that mechanisms are in place to prevent any form of coercion or undue interference from state agencies,” Shaukat added.

He further said that the SCBA advocated for a “network of stricter law” which should be “designed to protect judges from pressure that can arise from other branches of the government or from within their own ranks”.

Noting that the superior courts were empowered to initiate contempt proceedings, Shaukat said, “It is crucial for a strong message to be sent to the Parliament and the executive institutions that no interference will be tolerated henceforth.”

He called for an inquiry to “determine what exactly transpired” and why the IHC judges “failed to act” under Article 204 of the Constitution to take contempt action.

“Incidents should be thoroughly investigated, reported and conclusively resolved,” the SCBA president said, adding that it was advisable for the SC to “devise a protective framework” in consultation with all high courts.

Shaukat further urged that the “social activities of judges should be governed by specific guidelines within the code of conduct” and that they should “avoid engagements with litigants, lawyers, associates or friends involved in their cases”.

The lawyer went on to state, “Any kind of trolling of any honourable judge for maintaining any opinion he has independently cannot be permitted.

Here, Justice Minallah observed, “Judges have to rise above these things. No criticism, no matter how vicious, can affect the judge or the judge’s integrity or credibility.”

Terming the events of Nov 3, 2007 as the “biggest contempt of court”, he said the SC back then failed to initiate contempt proceedings despite its order being violated and judges being detained.

“How can you expect a district judge to speak up against interference?” Justice Minallah asked.

Here, Justice Mandokhail noted that there should be fair criticism on social media but people should not be misled.

CJP Isa then said: “There is a big difference between criticism and lies.”

“There was a commissioner here, and he spoke lies, and the media ran those lies,” the top judge said, noting that in people abroad even went bankrupt over defamation cases.

“Just start telling the truth, forget about the punishment,” Justice Isa said. In his arguments, IHC Bar Association lawyer Ahmed Hasan contended that interference in the judiciary could be from the administration, within the judiciary or social media.

He said that the power of suo motu had been used in the wrong manner in the past, terming it a “sort of interference”. Hasan added that the judiciary’s independence was not just the SC’s responsibility at which CJP Isa remarked, “Working for the judiciary’s independence is our duty; not yours.”

Justice Isa said the judges who face martial law and dictators “should be appreciated”, adding, “The judges who did not take oath under Provisional Constitutional Order and left are heroes.”

The hearing was adjourned for an indefinite period till the availability of the bench.

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 had 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 had been 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 had 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 had 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 had 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 had 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 had 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 had 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 had said.

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