FeaturedNationalVOLUME 19 ISSUE # 20-21

An independent judiciary is the essence of true democracy

There have been momentous developments on the judicial front in quick succession. First, six judges of the Islamabad High Court wrote a letter to the Judicial Commission alleging interference in their working by the security agencies. The Chief Justice of the Supreme Court, instead of taking action at his level, referred the matter to the government to form a judicial commission to probe the issue. Consequently, a one-judge commission was announced with retired justice Tasadduq Husain Jilani as its head. However, the latter recused himself from the commission with the result that the case went back to the SC. Now the Chief Justice of Pakistan has taken suo moto notice and constituted a seven-member commission to investigate the matter.

The case is one that involves the seminal issue of independence of the judiciary and the hurdles and challenges facing the judges in the discharge of their onerous duties. It all started last week when six judges of the IHC wrote a letter to the Supreme Judicial Council (SJC), accusing the country’s intelligence apparatus of interference in judicial affairs, including attempts to pressure judges through abduction and torture of their relatives and secret surveillance inside their homes. The letter, addressed to Chief Justice Qazi Faez Isa, Supreme Court Justices Mansoor Ali Shah and Munib Akhtar and chief justices of the IHC and 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 letter 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 an intelligence agency” 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. The letter also referred to the abduction of an IHC judge’s brother-in-law by armed men who claimed to be operatives of an agency. 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. Along with their letter to the SJC, the six judges also attached copies of letters written to the IHC CJ on May 10, 2023 and Feb 12, 2024.

The letter caused a furor in the country, with calls emerging from various quarters for a probe into the allegations. Reacting to the situation, Chief Justice of Pakistan (CJP) Qazi Faez Isa summoned a full court meeting of the SC judges. A day later Prime Minister Shehbaz Sharif met CJP Isa, where the two decided to form a commission headed by former CJP Tassaduq Hussain Jillani to investigate the charges of interference in judicial affairs by intelligence operatives.

Shortly afterwards, more than 300 lawyers from across the country issued a public statement to “express their unwavering commitment and wholehearted support to the principles of rule of law, independence of judiciary and access to justice” in light of the allegations made by the IHC judges. They also endorsed the resolutions passed by the Islamabad High Court Bar Association, the Islamabad Bar Association, the Sindh High Court Bar Association, the Pakistan Bar Council, the Khyber Pakhtunkhwa Bar Council and the Balochistan Bar Council expressing solidarity with the six judges of the IHC, commend their courageous action and demand appropriate action to uphold such principles.

The lawyers also urged the Supreme Court (SC) to take notice of allegations of interference in the judiciary by the intelligence apparatus under Article 184(3) of the Constitution, adding that any government-led commission “would be bereft of necessary independence and powers” to probe the claims. In their letter, the lawyers expressed their dissatisfaction and dismay with this course of action adopted which they said was antithetical to the principle of independence of judiciary. The statement pointed out that the inquiry commission was required to conduct the probe and perform its functions in accordance with the TORs notified by the federal government. The lawyers said:  “In view of such powers conferred upon the federal government, the inquiry commission would be bereft of necessary independence and powers to conduct a transparent, impartial and meaningful inquiry to restore the public confidence in the independence of judiciary.”

As pressure from the legal community and civil society in general built up, Justice Jilani declined to head the proposed commission of inquiry. In his letter he said that since Article 209 of the Constitution empowers the SJC to carry out inquiries into the capacity and conduct of Supreme Court and high court judges, it would be violative of judicial propriety for me to inquire into a matter which may fall within the jurisdiction of a constitutional body which is the SJC or the Supreme Court of Pakistan itself. He further said that the ToRs for the inquiry were “strictly not germane to the subject matter of the letter”. Pointing out that the chief justice of Pakistan being a paterfamilias may address and resolve the issues raised in the letter at the institutional level, Justice Jilani recused himself from heading the commission.

The case is now before the apex court which has taken suo motu notice of the allegations levelled by the six IHC judges and constituted a seven-member bench to probe the issue. It is a landmark case in the judicial history of Pakistan whose outcome will be crucial in upholding and strengthening the principle of independence of the judiciary which forms the basis of a just, fair and equitable society in today’s world.