ISLAMABAD: Two senior judges have opposed seeking input from intelligence agencies about judges or bureaucrats when considering them for promotions.

In an order issued on Saturday, Islamabad High Court’s (IHC) Jus­tice Sardar Ejaz Ishaq Khan said a bureaucrat with a meritorious service record could not be denied promotion solely on the basis of anonymous intelligence reports about his integrity.

Separately, Justice Syed Mansoor Ali Shah, the senior puisne judge of the Supreme Court, said that allowing intelligence agencies’ input in the appointment of judges “is prone to misuse”.

Justice Khan passed the order on the petition of Tahir Hassan, Grade 20 officer of the Information Group.

IHC’s Justice Ishaq, SC’s senior-most judge critical of intelligence evaluations

Mr Hassan was one of the officers in line for promotion to Grade 21 when the Central Selection Board (CSB) — which promotes bureaucrats in grades 19 to 21 — met in August 2023.

However, he was denied the prom­otion despite his stellar service rec­ord since reports from intelligence agencies found him “to be an officer of mixed reputation and questionable integrity”.

‘Oxymoronic’ reports

The court found that intelligence reports were presented before the board for the first time during the meeting, and neither the CSB members nor the petitioner had seen those reports before.

The officer was denied promotion solely on the basis of these reports despite the fact that he had “13 ‘Outstanding’, 22 ‘Very Good’ and 2 ‘Good’” evaluations over his career from 1994 to 2022, the court noted.

“It is downright shocking for a system of justice to countenance a framework whereby an officer’s career can be put in jeopardy on the basis of an intelligence report that was neither before his department before recommending him for consideration for promotion nor was before the CSB members at any time before they convened to consider an officer’s promotion, Justice Khan wrote in the order.

The judge lambasted the causal format of the intelligence reports and called them oxymoronic since “there is nothing intelligent written in those reports”.

The report from ISI, reproduced in the order, stated that the officer had a “satisfactory [professional] competence but was “financially corrupt and involved in corrupt practices”.

The allegation was neither substantiated by any proof nor any further details were given.

“He is financially corrupt and involved in corrupt practices. He is shrewed (sic) person who can’t handle pressures,” were other allegations made in the ISI’s report.

The Intelligence Bureau also remarked that Mr Hassan “does not carry fair reputation vis-a-vis financial integrity” without giving any further details.

“The quality of these reports defies belief! … one would expect, as a minimum, such reports to be duly documented with evidence and adequate particulars of enquiries to gather that evidence,” the judge remarked.

Justice Khan emphasised that denying Mr Hassan the opportunity to counter these allegations violated his fundamental rights.

He also criticised the amendments — made in 2022 — to the Civil Servants Promotion (BPS-18 to BPS-21) Rules, 2019 (CSPR), which allowed the use of intelligence reports in promotion evaluations.

He said the process was “vacuous” and lacked procedural safeguards.

Justice Khan set aside the CSB order and directed the board to consider Mr Hassan for promotion in its meeting “without regard to any intelligence reports”, which the petitioner had not had adequate opportunity to rebut.

‘Prone to misuse’

Justice Shah of the Supreme Court, in his feedback on the newly proposed rules of the Judicial Commission of Pakistan, opposed taking feedback from civil intelligence agencies about judges being considered for promotion.

The proposed rules have been formulated by the Rules Making Committee of JCP — which appoints judges to high courts and the Supreme Court. The rules were uploaded to the Supreme Court website for feedback from the general public and stakeholders.

Rule 11 provided for seeking “reports from at least two civil intelligence agencies” about the judges being considered for promotion.

In his comment, Justice Shah said the provision could be “misused”.

“Allowing civil intelligence agencies a say in the appointment process is prone to misuse, especially when primacy in the Commission is enjoyed by the Executive,” he said, adding that judicial members may rely on information “collected from their judicial peers and otherwise”.

In his nine-page feedback, Justice Shah also regretted that there was no logic or reason for nominating judges for the Constitutional Benches of the Supreme Court and the Sindh High Court (SHC).

“The commission has already nominated and determined a number of judges of the Supreme Court and SHC for the constitutional benches in the absence of any mechanism or criteria in place.”

However, the JCP, in its meeting held on Saturday to finalise the rules, did not consider these comments since it did not have the mandate to make rules on the composition of the constitutional bench, a task handed to the three-judge committee.

Justice Shah said the criteria for the evaluation of judges should include the number of reported judgements on constitutional matters, including dissents or additional notes.

The proposed rules are currently silent in this respect, Justice Shah said. The comments stated that candidate should be deemed fit after considering their experience, judicial philosophy, ethical standards, and ability to uphold constitutional principles.

As an overarching appointment policy, the nomination should be made from amongst advocates and judges of the district judiciary.

Female judges and those from minority and backward classes should also be nominated for appointment to top courts, he added.

This openness enhances transparency and accountability of the commission besides restoring public trust in the judicial system, the suggestion said.

Published in Dawn, December 22nd, 2024