AT PENPOINT
The letter by six judges of the Islamabad High Court, complaining of interference by agencies in their decisions, has kicked up a storm which refuses to go down, with the result that the government established a judicial commission of enquiry under a former Chief Justice of Pakistan, Mr Justice (retd) Tassaduq Hussain Jilani. However, his recusal made the Supreme Court take up the matter suo motu.
Prime Minister Shehbaz Sharif had got the commission approved at a Cabinet meeting which met after a one-day postponement, and which also denied the allegation of the executive’s interference in judicial matters as alleged in the judges’ letter, and termed them as ‘inappropriate.’
On the one hand, it seemed, the Cabinet, which stands at the peak of the executive, was denying that any of the so-called interference had been carried out with its approval. This implied that any interference was committed by ‘rogue elements’. On the other, the Cabinet sailed very close to saying that the judges had lied. Clearly, everyone seems reluctant to have anything to do with the matter.
The judges had written to the Supreme Judicial Council, thereby indicating a belief that it was the appropriate forum. However, the head of the Supreme Judicial Council, the Chief Justice of Pakistan, met the Prime Minister on the issue, and it was as a result of these deliberations that the judicial commission idea emerged, and which was then executed by the government.
The judges appear to have written to the SJC for two reasons. The first was because it appears to be the only body competent to carry out investigations involving the judges, especially in issues which might involve judges having their impartiality challenged, and thus becoming liable to being removed from office for violating the Code of Conduct, and secondly because of the Supreme Court decision striking down Mr Justice Shaukat Aziz Siddiqui’s removal as a judge.
Mr Justice (retd) Siddiqui had been removed from office in October 2018, because he had made a speech to the Rawalpindi Bar claiming that an intelligence agency official had pressurised the IHC CJ not to put him on any bench hearing Mian Nawaz Sharif’s bail. This was initially construed as an admission by Mr Justice Siddiqui that his claim had violated the Code of Conduct, because he had claimed that the then Chief Justice of the Islamabad High Court had followed directions, and that lower courts were also following directions.
Mr Justice Siddiqui’s appeal to the Supreme Court against the SJC finding was accepted, and the three-member Bench had ruled that Mr Justice Siddiqui, having passed retirement age, would receive the salaries and pension that would have been due to him had not been removed from office. The Supreme Court noted that Mr Justice Siddiqui was not given an opportunity to cross-examine the witnesses against him, and was denied due process.
While this episode may well prove a flash in the pan, it has the potential to be transformative. Certainly, coup-makers will not be able to assume the judiciary’s support, as they have in the past. Pressure, if applied, can blow up in one’s face, if judges are willing to go public. Such pressure does not take kindly to daylight.
The writers of the letter may have feared that their complaint could have caused them to receive the same treatment, for Mr Justice Siddiqui had first made his complaint in a speech to the Rawalindi Bar, but then in a letter to the Supreme Judicial Council. Once the decision established that complaining would not cause action against them, the letter was sent.
It is probably no coincidence that the head of the judicial commission, Mr Justice (retd) Taddaduq Hussain Jilani, had retired from the Bench before any of the nine judges of the Islamabad High Court were elevated, and was thus not involved in their elevation, as CJPs are.
It is also worth noting that four of the six judges writing the letter had not been colleagues of Mr Justice Siddiqui. It is also worth noting that the letter was signed by six judges, and starts with the senior-most puisne judge, who will become Chief Justice in 2031, assuming that the Chief Justice is not earlier elevated to the Supreme Court.
In short, the letter cannot be dismissed as an act of solidarity by former colleagues. Indeed, Mr Justice Siddiqui’s accusations being repeated indicate the interference continued.
Mr Justice (retd) Jilani’s having recused himself has ousted the executive from the whole matter, and after the Supreme Court suo motu committee has converted the letter into a human rights petition under Article 199.
It has been demanded that the Supreme Court set up a Full Court to hear the case, which it has done in effect. The case will be heard by seven judges. If the judgement is appealed, as it is likely to be, there are eight judges left of the 15-member court to hear the appeals. It is required that the appeals be heard by a bench larger than the one hearing the case. Thus the seven-member bench is the largest possible which leaves enough judges to hear an appeal.
It will be interesting to see how the Supreme Court proceeds with the investigation of the matter. In principle, especially considering the Supreme Court’s verdict in Mr Justice (retd) Siddiqui’s case, due process will have to be followed.
That implies the judges turning over the evidence they have, and disclosing their knowledge of events to an investigator, who would then draw up a list of potential witnesses, and of potential accused. In short, good old-fashioned police work. Who will do this? This actually was supposed to be done by the commission of enquiry. Now, it seems, the Supreme Court itself may well have to appoint one itself.
It is even possible that Mr Justice (retd) Jilani might be selected, because he is a person well respected by all of the other stakeholders, and has no personal involvement in the matter. His objection was to the Terms of Reference, and because it seemed that the judges had written to get institutional guidance.
The whole affair seems to reflect the breakdown of the establishment. It might seem paradoxical for an Army that has taken over four times, but it is very much a legalistic organisation. The greatest symbol of this is that each takeover obtained legal cover. The ‘establishment’ is not just the Army, but also the judiciary, which has given it, by and large, the kind of decisions it has needed. Going by the allegations being made, it is not only the superior courts which face pressure, but also the courts of original jurisdiction.
If the courts refuse to provide legal cover, the Army will face difficulties. If the courts act strictly according to the law and Constitution, takeovers will not be possible. Chief Justice Qazi made a ringing declaration of refusal to take pressure from anyone at the first hearing of the suo motu case, but there was a public perception that nothing would come of this matter.
The parties appear at something of a loss. The PML(N) is being drawn into a confrontation with the military, a place Mian Shehbaz did not want to be. The PPP’s silence reflects its hopes from the establishment, and its desiree that the PML(N) stew in its own juice. The PTI, presently dominated by lawyers because of party chief Imran Khan’s legal woes, is in the midst of the fray, avoiding any mention of how it had once basked in the sun of the establishment’s approval.
While this episode may well prove a flash in the pan, it has the potential to be transformative. Certainly, coup-makers will not be able to assume the judiciary’s support, as they have in the past. Pressure, if applied, can blow up in one’s face, if judges are willing to go public. Such pressure does not take kindly to daylight.
