ISLAMABAD: Supreme Court judges who are part of the bench hearing the case of alleged interference by intelligence agencies in judicial affairs on Tuesday decried their peers who were complacent as outside influence impacted the court’s functions.

Supreme Court Bar Association (SCBA) President Shahzad Shaukat said open expression of discontent among judges will not boost the public’s confidence in the judiciary.

The remarks by judges were issued by the six-member bench, headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa, which resumed suo motu proceedings initiated after the March 25 letter written by six Islam­abad High Court (IHC) judges about interference.

“Sorry, I will put it very bluntly by saying if you were complicit, you should not sit here and go home,” CJP Isa observed.

CJP says complicit adjudicators should go home; Justice Minallah says federal govt answerable for spy agencies’ actions

Another bench member, Justice Syed Mansoor Ali Shah, emphasised the need to develop an “effective system” to tackle outside influence in the court’s work.

To ensure judiciary’s independence, the entire institution must stand united behind any judge “who is on the right side”, similar to what lawyers do, said Justice Shah, who is also the senior puisne judge.

Unfortunately, our system does not encourage such judges; rather, they are “ignored”, the judge remarked, adding that no one could harm a judge if the judiciary remained united.

The second senior-most judge of the SC also emphasised the need for taking prompt action against compromised judges by throwing them out.

The CJP observed that a civil judge was as powerful as adjudicators of the superior judiciary and lower courts should take a stand on these matters.

Justice Jamal Khan Mandokhail, another member of the bench, regretted that all political parties want to use the judiciary for their benefit.

At this, Justice Minallah remarked that in 2018, a different political party was the beneficiary of this system whereas today someone else was getting the benefit.

‘Buck stops with Centre’

When proceedings started on Tuesday, Attorney General for Pakistan (AGP) Mansoor Usman Awan sought a written order of the last hearing.

He reasoned that it was necessary to communicate with the Prime Minister’s office to submit its response.

The order could not be issued since it was not signed by three judges. Consequently, a print was provided to the AGP carrying signatures of all six judges.

Justice Minallah wrote an additional note in the open court stating that the federal government has to submit its response to the grave interference by the executive, as highlighted by all high courts.

This is the most serious and grave situation undermining the independence of the judiciary “which cannot be trivialised”, the note said, adding that since the federal government controls intelligence agencies, it must explain its position.

“The bucks stop with the federal government. The high courts have indicated that the phenomenon [of interference] has existed till recently,” the note said.

‘Not a good message’

When the bench members pointed out judges’ shortcomings, SCBA President Shaukat said such remarks were “not sending a good message to people”.

He added that the proceedings were being broadcast live and watched by the entire nation and remarks like “the Supreme Court was complicit” and that “judges were compromised” were actually “eroding the public trust”.

Mr Shaukat also referred to the role of social media, stating that it has presented a new set of challenges.

At this, the CJP wondered about the regulation of social media.

The SCBA chief said social media has to be regulated by the PTA and the recently set up National Cyber Crime Investigation Agency.

He also referred to the trolling of superior courts’ judges saying it was the stand of his association that such acts were “absolutely intolerable” and the government, tasked with regulating social media, “must do its work”.

At this, Justice Minallah said judges must not fear any criticism, no matter how vicious.

He highlighted that the current CJP was also the victim of such trolling in the past, and he has been subjected to similar opprobrium since 2018, with even his integrity questioned.

“Did it make any difference?” the judge remarked, saying judges have to rise above these issues.

Justice Musarrat Hilali observed that there was a difference between criticism and insult.

Justice Minallah then remarked that the most serious contempt in judicial history was the trampling of the Nov 3, 2007 restraining order passed by seven SC judges.

He was referring to the verdict which declared the proclamation of emergency unconstitutional and barred the then president Gen Pervez Musharraf and prime minister Shaukat Aziz from taking actions contrary to the independence of the judiciary.

Later, the judges, including the chief justice Iftikhar Mohammad, were sacked and placed under house arrest.

Recalling the event, Justice Minallah remarked that even though the judiciary was restored, the court “could not issue contempt of court [notice] against those flouting the court’s orders when even the judges were imprisoned”.

He said when even the Supreme Court shied from contempt proceedings, how could it be expected from the district judiciary to take such actions?

The SCBA president recalled that the perpetrators of the actions of Nov 3, 2007, were tried on the Supreme Court’s directives, and retired Gen Musharraf was sentenced to death.

“Why did the judiciary not get encouragement from the judgement?” the lawyer wondered.

While closing proceedings the CJP said that the next date of hearing would be communicated later.

Published in Dawn, May 8th, 2024