Ensuring judicial independence

April 7, 2024

The chief justice of Pakistan says there will be zero tolerance regarding independence of Judiciary

Ensuring judicial independence


he Supreme Court of Pakistan has once again said that there will be no compromise on the independence of the Judiciary.

The unequivocal statement was made by the chief justice, Justice Qazi Faez Isa, during a preliminary hearing of the suo moto notice taken by the court in the aftermath of a letter written by six judges of the Islamabad High Court regarding interference in judicial affairs. A seven-member SC bench, headed by the CJP heard the case at Courtroom Number 1.

IHC judges Mohsin Akhtar Kayani, Tariq Mahmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan, Arbab Muhammad Tahir and Saman Raffat Imtiaz had addressed the letter to the Supreme Judicial Council on March 25.

The letter had surfaced in the media after the Supreme Court of Pakistan pronounced its verdict in Justice Shaukat Aziz Siddiqui’s case. Siddiqui had alleged similar interference and was removed from the court through the Supreme Judicial Council for making a public speech accusing the establishment of trying to influence the court. A five-member SC bench has recently set aside the removal. Apparently encouraged by the SC verdict, six judges of the IHC have now written a letter alleging interference and seeking guidance.

After the letter became public, the chief justice had met Prime Minister Shahbaz Sharif. Senior Puisne Judge Syed Mansoor Ali Shah, Supreme Court Registrar Jazeela Aslam, Federal Minister for Law Azam Nazeer Tarar and Attorney General Mansoor Awan were also present in the meeting. Justice Isa had then stated that interference by the Executive in the work of judges would not be tolerated. Following a meeting of the federal cabinet, the government had then announced the constitution of a one-man commission to investigate the matter. Justice Tassaduq Hussain Jillani, a former chief justice of Pakistan, was to head the commission. However, Justice Jillani recused himself from the task. In a letter addressed to the prime minister, he thanked the government for the trust placed in him but highlighted a discrepancy between the issues raised by the IHC judges and the terms of reference of his appointment. He suggested that the matter raised by the IHC judges fell in the purview of the Supreme Judicial Council and the Supreme Court of Pakistan.

It was in this context that at the April 3 hearing the chief justice declared that “An attack on the Judiciary’s independence will not be tolerated.”

“Our order today is that we will not tolerate any threat or interference. Let us work. There will be zero tolerance regarding independence of the Judiciary,” the CJP said.

He said the letter was taken seriously. The issue at hand was to hold an inquiry to bring out the facts. “But who should do this? A commission, police, the FIA or some other agencies,” the CJP asked. He added that under the constitution, forming a commission was the government’s job and not the court’s.

The CJP said it was wrong to suggest that the Supreme Court had yielded its powers to the government or delegated those to the commission. The chief justice also remarked that if an interference was made in a judge’s work, they should initiate contempt proceedings. For this, he said, the judges did not require the permission of the SJC. “I cannot exercise the power of another court; the court in contempt will use this power itself,” the CJP remarked. He added that the Supreme Court had never stopped any judge from taking contempt of court action.

Ensuring judicial independence

The government had then announced to form a commission to investigate the concerns of interference in judicial affairs. After a meeting of the federal cabinet, former chief justice of Pakistan Justice (retired) Tassaduq Hussain Jillani was appointed to head the commission. However, Jillani later recused himself. 

“We cannot bury our heads in the sand like some ostrich. A system is needed on this matter… From a civil judge up to the SC... interference in the Judiciary must be put to end. Forever,” Justice Mansoor Ali Shah, the senior most judge after the CJ, observed.

Justice Jamal Mandokhail said that one way to go about it was that the “interference stops here. And does not happen in the future.”

“Everybody knows what is happening to the Judiciary. We pretend that nothing is happening,” Justice Athar Minallah said. Attorney General Mansoor Usman Awan assured the court that all possible support will be extended from the federal government for investigation of the matter. He submitted that the reputation of the Judiciary on the one hand and of the administration on the other had been threatened. Addressing the attorney general, Justice Minallah said the prosecution had the authority of the administration. “You cannot stand there and [merely] issue a statement. This has to be taken to its logical end. There has been political engineering in the country. There is a political issue about this court,” he remarked.

The CJP said the court will issue written guidelines on the issues raised in the letter. He indicated that the full court might hear the case. “Today seven judges were available in Islamabad and we heard the case,” he said, adding that more judges may be available on April 29 or 30.

Leaders of some political parties as well as some lawyers have criticised the government for “failing to protect the Judiciary.”

“This letter is one of the greatest acts in the recent history of the Judiciary. It signifies something fundamental. It can be seen as the latest [development] in the ongoing conflict in Pakistan between de jure (constitutional) power of the pen/ Judiciary and the de facto (actual) power of the sword/ establishment. It denotes the age-old problem of power,” noted lawyer Faisal Siddiqi said. “The judges’ principal focus is clear in the first and last paragraphs asking the chief justice of Pakistan how best to protect the independence of the Judiciary,” he said.

Asked if this could usher in a new era of the independence of the Judiciary, he said: “In the end no one can predict whether the pen or the sword will prevail. This conflict may continue in the near future.”

“The suo motu notice and the constitution of a large bench are positive developments. We should expect good coming out of these efforts to strengthen the Judiciary and ensure its independence,” Abid Saqi, senior lawyer and former Pakistan Bar Council leader said. He added that, “the possibility of more threatening letters [being sent to the judges] cannot be ruled out.”

Meanwhile, law enforcement agencies are investigating the letters containing a powdery substance sent to certain judges of the Lahore and Islamabad High Courts as well as the Supreme Court. The Counter Terrorism Department has established that 10 of the letters were posted from the same post office Satellite Town, Rawalpindi.

Lawmakers from the government as well as opposition have demanded a thorough investigation.

The writer can be reached at vaqargillani@gmail.com

Ensuring judicial independence