SC takes suo motu notice of IHC judges’ letter

ISLAMABAD: The Supreme Court Monday took a suo motu notice of the letter written by the Islamabad High Court (IHC) judges complaining of interference by the intelligence agencies in the judicial affairs.

A seven-member larger bench of the apex court — headed by Chief Justice of Pakistan Justice Qazi Faez Isa — will hear the matter tomorrow (Wednesday) at 11:30am.

The other bench members are Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Jamal Khan Mandokhel, Justice Athar Minallah, Justice Ms Musarrat Hilali and Justice Naeem Akhtar Afghan.

In this respect, a notice has been issued to attorney general for Pakistan.

Some 300 lawyers, belonging to various bar associations across the country, had the other day signed a petition demanded Chief Justice Qazi Faez Isa to exercise suo motu jurisdiction under Article 184(3) of the Constitution and hear the matter.

The lawyers also rejected the formation of an inquiry commission led by former chief justice of Pakistan Justice Tassaduq Hussain Jilani to probe the allegations.

It was learnt that the chief justice had referred the matter to a judges’ committee — comprising himself and three senior most judges of the apex court under the Supreme Court (Practice and Procedure) Act 2023 — for deliberation and constitution of a bench for hearing the matter.

The committee later decided to exercise suo motu jurisdiction under Article 184(3) of the Constitution and fix the matter for hearing on April 3.

On March 25, six judges of Islamabad High Court (IHC) had demanded Chief Justice of Pakistan Justice Qazi Faez Isa to convene the Judicial Convention to consider the matter of interference of intelligence operatives in the judicial functions or intimidation of judges in a manner that undermined independence of the judiciary.

The IHC judges, including Justice Mohsin Akhtar Kayani, Justice Babar Sattar, Justice Arbab Muhammad Tahir, Justice Tariq Mahmood Jehangiri, Justice Sardar Ejaz Ishaq Khan and Justice Saman Rifat Imtiaz, had wrote a letter to the chief justice, who is also chairman of the Supreme Judicial Council (SJC).

The letter was also dispatched to other SJC members including Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Chief Justice Islamabad High Court Justice Aamer Farooq, and Chief Justice Peshawar High Court Justice Muhammad Ibrahim Khan.

They expressed hope that such institutional consultation might assist the Supreme Court to consider how best to protect the judicial independence, put in place a mechanism to fix those who undermine such independence and clarify for the benefit of individual judges the course of action they must take when they find themselves at the receiving end of interference and/or intimidation by the members of the executive.

The IHC judges had sought guidance from the Supreme Judicial Council with regard to the duty of a judge to report and respond to actions on part of members of the executive, including operatives of intelligence agencies, that seek to interfere with the discharge of his/her official functions and qualify as intimidation, as well as the duty to report any such actions that come to his/her attention in relation to colleagues and/or members of the courts that the High Court supervises.

They had noted that the code of conduct for judges — prescribed by the SJC — provided no guidance about how they “must react to and or report incidents that are tantamount to intimidation and interfere with judicial independence”.

After the IHC judges’ letter went viral, considering the gravity of the allegations, the chief justice called a meeting the same day with the chief justice and all the judges of the Islamabad High Court after Iftar at 8pm at his residence.

The concerns of all the judges were heard individually in a meeting that lasted for over two and a half hours.

The following day, 27 March 2024, the CJP met with the attorney-general and the law minister, and thereafter the CJP along with the senior puisne judge met with the president of Supreme Court Bar Association (SCBA) and the senior most member of the Pakistan Bar Council in Islamabad.

A full-court meeting of all the SC judges, called under the chairmanship of the chief justice of Pakistan at 4pm the same day, deliberated on the issues raised in the letter.

The full-court developed a consensus by majority that the chief justice may hold a meeting with the prime minister of and raise the issue with him.

Later on, the chief justice met with Prime Minister Shahbaz Sharif in the Supreme Court where he clearly stated that interference by the executive in the affairs and judicial workings of judges will not be tolerated. During the meeting, constitution of an inquiry commission was proposed under the Pakistan Commissions of Inquiry Act, 2017. The prime minister fully endorsed the views expressed by the CJP and senior puisne judge and assured them that he will be taking other appropriate measures to ensure an independent judiciary.

“Thereafter, in continuation of the last meeting, the CJP again called a full-court meeting and briefed the judges on what had transpired in the meeting with the prime minister. Following the development, the federal government announced formation of an inquiry commission led by former chief justice of Pakistan Justice Tassaduq Hussain Jillani.

However, Justice (retd) Tassaduq Hussain Jillani Monday recused to head the one-man inquiry commission in a letter addressed to Prime Minister Mian Shehbaz Sharif.

Though the letter in question may not strictly fall within the parameters of Article 209 of the Constitution, the chief justice of Pakistan being a paterfamilias may address and resolve the issue raised in the letter at the institutional level, said Jillani.

“I thank you and the cabinet for reposing confidence in me to head the commission,” Justice (retd) Jilani wrote saying he was also grateful to Chief Justice of Pakistan Qazi Faez Isa and Senior Puisne Judge Justice Syed Mansoor Ali Shah for expressing confidence in him.

The former chief justice said he had gone through the afore-stated letter of the six judges and the terms of reference approved by the cabinet as well as the relevant constitutional provision (Article 209).

“Since the letter is addressed 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 jurisdiction of a constitutional body which is the Supreme Judicial Council or the Supreme Court of Pakistan itself,” he wrote.

He said the terms of the reference (ToRs) for inquiry were strictly not germane to the subject matter of the letter dated 25-08-2024 wherein the six judges inter alia said; “We are writing to seek guidance from the Supreme Judicial Council of a judge to report and respond to actions on part of members of the executive, including operatives of intelligence agencies, that seek to interfere with discharge of his/her official functions and qualify as intimidation, as well as the duty to report any such actions that come to his/her attention in relation to colleagues and or members of the courts that the High Court supervises.”

Towards the end the request made in the letter is for an “institutional consultation” in terms of the mechanism suggested in the said letter,” Justice Jilani wrote.

He said though the letter in question may not strictly fall within the parameters of Article 209 of the Constitution, the chief justice of Pakistan being a paterfamilias may address and resolve the issues raised in the letter at the institutional level.

For the above referred reasons, I recuse myself to head the commission and proceed with the inquiry,” he concluded.