IHC judges’ letter and implications

The verbal exchange between Chief Justice of Pakistan Justice Qazi Faiz Isa and Justice Athar Minnallah during the hearing of the case on the letter written by Islamabad High Court Judges (IHC) alleging interference in judicial work by intelligence agencies — streamed live on national television on April 3 — betrayed some glimpses of pressures, divisions, contradictions and bitter realities of our society. It was a remarkable debate happening before countless Pakistanis glued to television screens, intrigued as to how the apex court looked at the issue raised by the IHC judges. People at large — particularly those whose association with a party has been criminalised and treated with contempt — wonder if the IHC judges’ letter would go a long way in insulating the top judiciary from malign influences.

Some of the remarks and responses by Justice Isa sounded amusing. His most poignant reaction came when Justice Athar Minallah raised some issues on the state of human rights and institutional interference.

Addressing the Attorney General of Pakistan (AGP), in what clearly appeared an indirect message to the top brass of the judiciary as well, Justice Athar Minallah said: “You have rightly said that there was political engineering till some time and probably, the perception is that this court was also complicit. But what the [IHC judges’] letter says is that it is continuing. Let’s not pretend that nothing is happening.”

The top court judge continued: “We can close our eyes and give an impression as if we do not know anything. The question that has been there for the past 76 years has come in the judges’ letter now.”

Justice Athar Minallah also reminded all those present that “everyone talks of accountability but no one actually does it. Nor has anyone been punished.”

Justice Jamal Khan Mandokhail and Justice Mansoor Ali Shah, too, remarked that the complaint by the IHC judges demanded an institutional response to ensure that “interference stops here and does not happen in the future”.

“We cannot bury our heads in the sand like an ostrich. A system is needed on this matter from a civil judge up to the SC. The series of interference in judiciary must be put to end forever,” Justice Shah noted.

In response, CJP Isa tried to draw distance and said he might not necessarily agree with Justice Athar and others. “All I can say is that I will take action on interference in judicial matters only when a complaint is received from a judge,” he said, apparently to stay clear of what happened before him. “Since I became the chief justice, no complaint has come from anyone and hence [I am] unable to adjudicate [on] that matter.”

Justice Isa’s remarks evoked mixed response and also took many court-watchers down the memory lane to his explosive verdict in the Faizabad Dharna case in February 2019. The judge had then observed that “the armed forces, and all agencies manned by the personnel of the armed forces, including ISI, Military Intelligence (MI) and ISPR serve Pakistan, and thus all its citizens… and if any personnel of the armed forces indulges in any form of politicking or tries to manipulate the media he undermines the integrity and professionalism of the armed forces. They must never be perceived to support a particular political party, faction or politician.”

Coming down hard on illegal closure of roads, including the Faizabad Point in 2017, by Tehrik-e-Labbaik Pakistan (TLP), Justice Isa had questioned the role of state agencies, in failing to counter the threat of violent extremism posed by groups like the TLP and others.

The CJP also promised to safeguard judiciary’s independence. “If there is any kind of attack on the judiciary’s independence, I would be at the frontline [in defending judiciary] and for sure, my fellow judges would be standing with me in this. And we never accept interference.”

It was a very natural commitment he gave as the CJP but was his stance (i.e. can’t do much on what happened before me) a departure from the position he took in his February 2019 judgement on the 2017 Faizabad Dharna case?

Can a judge gloss over his own judgement from the recent past on the role of other institutions, pressures exerted on judges and interference in judicial matters?

The issue at hand is much more critical and, in the words of Justice Athar Minnallah, the court needs to do something about the “culture of deviance that has been perpetrated with impunity for 76 years”.

The sense of observations by the majority of judges on April 3 was encouraging. It is indeed a rare opportunity for them to fix the matter for good through an institutional response to the issues the IHC judges have raised.

That would perhaps be a watershed — regardless of how it is treated by other institutions — in Pakistan’s history. Hence the nation awaits with anxiety as to how the majority of the Supreme Court judges positions itself on the issue at hand i.e. the culture of impunity as far as fundamental rights and institutional roles are concerned.

Published in The Express Tribune, April 6^th, 2024.

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