Why could the Islamabad High Court (IHC) judges not act themselves on what they wrote in the letter and ask the top court to take action? The Supreme Court judges had a golden opportunity to set the rules, however, a regret remains that the high courts did not exercise their power of contempt. These are the observation respectively of Justice Musarrat Hilali and Justice Mansoor Ali Shah of the Supreme Court.
Both the honorable judges observed this when a six-member bench comprised Justice Naeem Akhtar Afghan, Justice Athar Minallah, Justice Musarrat Hilali, Justice Jamal Khan Mandokhail and Syed Mansoor Ali Shah headed by the Chief Justice of Pakistan (CJP) Qazi Faiz Isa resumed hearing on IHC judges’ letter today.
The CJP noted that he had served as CJ of the Baluchistan High Court for more than five years and the biggest threat came in that was only from the Supreme Court. He continued by saying that he should not be included in the context of 76 years of judicial history of Pakistan.
Justice Minallah observed that he had also served as CJ of the IHC for four years and no interference occurred in that time. The senior puisne judge Justice Shah remarked that nobody had interfered in his judicial affairs so far. Justice Jamal Khan Mandokhail pointed out that this meant that it was limited to a specific judge.
Justice Musarrat Hilali noted that those who could not sustain pressure had no right to be judges. Justice Minallah observed that this had been happening between the judiciary and the security apparatus for 76 years. He added that it was the responsibility of the state to protect the judges and the independence of the judiciary.
The CJP disagreed maintaining that such a culture did not exist in the country. “If I cannot deliver correct judgments in accordance with the Constitution and the law despite interference or pressure, then I should go home.” Justice Jamal Khan remarked that the government was not taking any action against the alleged interference in judicial matters.
Justice Minallah noted that the government should satisfy the court and not interfere in judicial matters. He further said that the top court, under Article 184/3 of the Constitution, cannot investigate itself. Justice observed stating that everyone was agreeing that there is interference in judicial matters. Justice Mandokhail noted that that there is interference but the government is not doing anything about it. Meanwhile, the Attorney General Mansoor Awan appeared before the court. Advocate Riazat Ali appeared as the Pakistan Bar Council’s (PBC’s) lawyer and said that the judges sought guidance from the Supreme Judicial Council. He said that the judges had made very serious allegations and said a judicial commission comprising SC judges be formed to probe the allegations leveled by the IHC judges.
The AGP apprised the court that the written order of the last hearing was not yet received by him and it was essential to be shown to the prime minister to file the government’s reply. The government would be able to file its response by tomorrow if they receive the order today, he requested. The SC Bar submitted suggestions to the top court, saying that it would never compromise on the independence of the judiciary. The SCBA requested an inquiry against those intervening in judicial matters. It said that the IHC has the power of contempt of court and it should have taken action under the contempt of court provisions.
Islamabad High Court Bar presented their viewpoint. Representatives of Lahore and Baluchistan High Court Bar also appeared before this learned court. hearing responses of the lawyers, the CJP noted that it was surprising that none of the lawyers were on the same page for the independence of the judiciary.
The CJP Isa said that the Supreme Judicial Council is a separate body and the SC cannot direct it “I am the chairman of the Supreme Judicial Council but I am not the SJC itself. There are other members in the body,” he said. He noted that the PBC was suggesting a probe, that the judges use criminal laws to deal with the issue and launch contempt of court proceedings. Justice Mandokhail maintained that there should be a deterrence if anyone tries to interfere. The SCBA President Shahzad Shaukat said that there can be no compromise on the independence of the judiciary, adding that the judiciary should make decisions without any pressure.
The AGP read a note by Justice Minallah highlighting the seriousness of the matter regarding judicial independence. Justice Minallah suggested the government clarify its position, and the CJP urged unity among bar councils for the judiciary’s independence. He reiterated the judiciary’s duty to uphold independence and praised judges who faced challenges in the past. The court also observed that the federal government or intelligence agencies could submit a reply to the court if they wanted, but declared that pushing the judiciary to their own path was also interfere.
