• CJP advocates legislation to rein in spy agencies, stresses need for non-interference with workings of high courts
• Two judges highlight need for an intervention to ‘thwart future intrusions’
• Justice Mansoor decries culture of intimidation, says judges fear ‘Big Brother is watching’

ISLAMABAD: Diffe­re­nces of opinion surfa­ced during the Supreme Court’s proceedings on the issue of meddling by intelligence agencies in judicial affairs, with Chief Justice of Pakistan (CJP) Qazi Faez Isa suggesting the need for legislation to rein in spy agencies, and two other senior judges advocating the need for judicial intervention to thwart future intrusions.

Justice Isa, who is heading a six-judge Sup­reme Court bench conducting suo motu proceedings in a letter written by six Islam­abad High Court (IHC) judges on March 25, obser­ved on Tuesday that the top court should not interfere in the workings of the high courts, since such actions had not yielded good results in the past.

However, senior pui­sne judge Justice Man­soor Ali Shah pointed out “a gol­den opportunity” to lay down a code or a system by developing a clear firewall, and putting in place a mechanism against all kinds of outside access in the future.

He said a clear code should lay down what the Supreme Judicial Cou­ncil (SJC) could do if such things happened to a high court judge and what the high court could do if they happened to the district judiciary.

The Supreme Court, how­ever, put off further pr­o­ceedings until May 7, with a direction that if the intelligence agencies feel aggrieved by the letter wri­tten by IHC judges, they can furnish their response through the Attorney Gen­eral of Pakistan’s office.

The court also ordered the Pakistan Bar Council (PBC) and the Supreme Court Bar Association (SCBA) to furnish a una­n­imous response, though differing viewpoints co­u­ld be mentioned separately. In view of several petitions, the court made it clear that it wo­uld not make any applicant a party to the case.

During Tuesday’s proceedings, Justice Shah lamented the culture of intimidation in which even judges couldn’t express their opinions openly and feared being watched all the time.

“Why is it so that we have to put our cell phones away or change rooms to express views?” Justice Shah regretted, quoting the iconic phrase “Big Brother is watching you” from George Orwell’s dystopian novel, Nineteen Eighty-Four.

CJP Isa said he would never accept any interference from any source and stressed that there had not been a single complaint since he took office. He also wondered whether it also amounted to interference when pr­e­s­idents of the lower ju­d­iciary bar associat­ions “force their way into the judges’ chambers”.

During the hearing, Att­orney General for Pak­istan (AGP) Mansoor Usman Awan read out the recommendations forwar­ded by all four high courts.

Mr Awan also read out the letter from the Peshawar High Court’s registrar to highlight that during the meeting, the high court judges complained about intelligence agencies’ direct approach to them seeking favour in political cases.

But when the matters were decided impartially, judges received life threats through non-state actors from Afghanistan, the communication said, adding that the matter was discussed with the Counter-Terrorism Department (CTD) but to no avail.

State ‘becoming aggressor against judges’

Justice Shah emphasised that several judgements, like the Faizabad dharna case or the Iftikhar Muhammad Chaudhry case, were available but nothing had been done.

Only because of the present case, he said, the district judiciary had mustered courage to express their apprehensions to the chief justice when they had never dared to do so so in the last 76 years of our judicial history.

Likewise, the high courts have reached out to the Supreme Court when they have all the powers to address the issue themselves, but they have not done it so far and therefore the apex court cannot brush it aside.

“By interfering in this matter, we are actually strengthening the high courts and the district judiciary,” Justice Shah said.

Meanwhile, Justice Athar Minallah regretted that the judiciary’s internal weaknesses could be dealt with separately, but the real issue was the state becoming an aggressor against judges. This was what all the high courts had pointed out through their recommendations and therefore the apex court needed to show its resolve, he said.

This also became serious when even all the high courts were endorsing what the IHC had complained about, i.e. that the interference continued, Justice Minallah feared, adding that judges were fearful of reporting such instances when the personal data of an IHC judge, which couldn’t be accessed by a private person, was put on the social media.

“This is called intimidation,” Justice Minallah insisted, referring to IHC Justice Babar Sattar.

He said the elevation of that judge to the judiciary was opposed inside and out because he was independent-minded man.

He said the state has to protect judges to ensure judiciary’s independence.

However, he noted that the interference phenomenon has been happening for the last 76 years, adding that when the family data of children and wives was stolen from government departments, the entire onus was on the state.

If the government is talking about legislation, it must also acknowledge that it was helpless, Justice Minallah regretted, wondering whether the government was also helpless when political engineering was taking place in 2017 against the government of that day.

Justice Minallah opposed the idea of legislation, saying that the agencies were under the prime minister’s and his cabinet’s executive control. He also highlighted the duty to maintain the image of the armed forces and said they should not be perceived as being against the people but as defenders of this country.

‘Shameful, unacceptable’

Justice Jamal Khan Mandokhail regretted that two judges were being threatened ever since the top court had taken up this case. “Was moving a complaint to the Supreme Court a fault of the high court judges?” he regretted.

AGP Awan described such attempts as “shameful, disgusting and unacceptable”.

But Justice Musarrat Hilali observed that those who couldn’t bear the pressure should not sit on the bench, adding that judges should not complain.

CJP Isa regretted that the Faizabad dharna judgement was not implemented because the Supreme Court itself was complicit, and wondered whether there was any justification for keeping the review petitions against that verdict pending for almost five years.

Therefore, wrongdoing also lay within the Supreme Court, and this also amounted to complicity in determining which case to be fixed before which bench and when, he said.

Justice Isa said the matter could be sorted out if the government or the parliament enacted legislation so that the intelligence agencies would know about their boundaries. “We want to make parliament stronger, otherwise other powers or entities will become powerful,” he said.

Justice Naeem Akhtar Afghan asked AGP Awan to assist the Supreme Court by presenting the legal instruments enacted at the time when intelligence agencies such as the Inter-Services Intelligence, Intelligence Bureau and Military Intelligence were established, as well as apprising the court about the job description of these agencies.

Published in Dawn, May 1st, 2024