‘IHC vested with power to deal with meddling’

Justice Yayha Afridi has noted that the Supreme Court’s original jurisdiction under Article 184(3) of the Constitution – particularly a suo motu motion – should be sparingly exercised.

“This caution of judicial restraint should be further guarded when the matter for determination is inquisitorial, requiring a factual probe before a definite declaration, and/or, direction is rendered by this court,” the judge noted in his additional note to the SC’s April 3 written order in judges’ letter case.

Justice Afridi was part of the seven-member bench led by Chief Justice of Pakistan (CJ) Qazi Faez Isa that started suo moto proceedings on a letter penned by six of the eight Islamabad High Court (IHC) judges on March 26, making serious allegations about interference of intelligence agencies in judicial affairs.

Justice Afridi had recused himself from hearing the case. The SC on Saturday unveiled the written order of the first hearing of the case. The written order also contained Justice Afridi’s additional note.

The judge stated that while the issue deserved invoking suo motu jurisdiction, to judicially proceed in the case would surely lead to an adverse spectacle, “a sight I seriously urge should be avoided”.

“The letter of the six worthy judges of the IHC craves for formulating the administrative course of conduct for serving judges to not only address any intrusion of the executive in their judicial functions, but more importantly, their mode and manner of interaction with the executive.”

He said to proceed on the proposed action of suo motu would negate the lessons learnt from recent judicial precedents, adding that the SC must not move into action by public sentiments no matter how pressing the issue may appear.

“One must also not ignore that the high courts under the Constitution are independent establishments, envisaged to regulate not only their administrative functions, but also provide security to and safeguard judicial officers in their discharge of judicial functions. Law on the matter is already in the field.

“The inaction on the part of the chief justice or the judges of the high court not to exercise the jurisdiction and powers vested in him or them, should not lead this court to superimpose the exercise of its jurisdiction under Article 184(3) of the Constitution,” he noted.

“This may affect the functioning of the worthy chief justice and worthy judges of the high court and would amount to interference in the independence of the high courts.”

He noted that the anxiety raised in the IHC letter warrants positive consideration in the shape of inserting appropriate provisions to regulate the interaction of judges with the executive and the remedial response of the judiciary to any attempt or actual interference in its judicial functions.

Justice Athar Minallah, another member of the bench, dissented from paragraph 1 to 12 of the April 3 written order.

He said the question whether the prime minister can be called on the administrative or judicial side and whether constitution of a commission to probe the letter by the executive branch of the state in exercise of its powers conferred under the Pakistan Commissions of Inquiry Act, 2017 would have been in breach of the principle of independence of judiciary are yet to be considered by the full court.

“Moreover, larger benches of this court, while exercising the extraordinary jurisdiction under Article 184 (3) of the Constitution have already exercised the power of constituting commissions and, therefore, this question is also open to be decided in this case on the judicial side by the full court.

“All these questions are likely to be considered by the full court in the present proceedings and, therefore, propriety requires that I restrain myself from commenting on these issues."

He said the six IHC judges have brought to the attention of the Supreme Court grave and serious interference in judicial proceedings and intimidation of judges

“The six judges have sworn oaths under the Constitution and, therefore, a presumption of credibility and truth is attached to what they have highlighted in the letter unless it is rebutted.

“They have done what every judge is bound by the oath to do; uphold the Constitution and the independence of the judiciary. There is no conceivable justification to doubt their intention in bringing on record a matter of highest public importance,” he added.