KBA echoes IHC stance; seeks agency scrutiny

Supporting the stance of the Islamabad High Court (IHC) judges regarding interference of agencies in judicial functions, the Karachi Bar Association (KBA) has requested the Supreme Court to direct the federal government to devise appropriate mechanisms for effective scrutiny and oversight of agencies.

It has also urged the apex court to ensure that state institutions do not transgress their lawful domain and that intelligence agencies are duly regulated through requisite legislation.

"It is high time that the observations and directions made by this court in, inter alia, the Air Marshal (retd) Asghar Khan case and the Faizabad Dharna case regarding the effective monitoring and regulation of intelligence agencies be implemented in letter and spirit,” said the KBA petition.

The petition moved through Salahuddin Ahmed advocate said intelligence agencies cannot continue to operate in a legal vacuum and with unchecked powers sans any effective executive or legislative oversight or accountability.

It said the distressing nature of allegations raised in the letter by IHC judges militate for an independent and impartial inquiry especially when coupled with the past history of unlawful intrusions by the executive in judicial affairs as recorded in numerous SC judgments.

"It is not a one-off incident but a deliberate pattern of harassment, intimidation and pressurization of the judiciary which has, hitherto, gone unchecked.

“In the circumstances, any inquiry must be conducted by this court directly or, alternatively, through a commission appointed by, and reporting to, this court as per terms of reference settled by this court."
The petition states that the judiciary stands between the people and any excesses of the executive, as the executive often oversteps its bounds.

"If the judiciary is unable to do so, and instead itself becomes a victim of the excesses of the executive, then any faith in the judiciary shall be whittled away.

It said in the Iftikhar Chaudhry case, the court held that since access to justice was inconceivable in the absence of an independent judiciary guaranteeing impartial, fair and a just adjudicatory mechanism, therefore, the demand for judiciary which was free of executive influence and pressures was also an integral part and an indispensable ingredient” of Article 9 of the Constitution.

It said the petition also invokes Article 4 of the Constitution, which provides that any action “detrimental to the life, body and reputation or property of any person shall be taken except in accordance with law” and a coerced, threatened and intimidated judiciary is necessarily unable to keep in check unlawful executive actions"

Referring to Article 203 of the Constitution which says that each high court shall supervise and control all courts subordinate to it, it said this supervision is entirely illusory if judges’ homes are being invaded with incendiary devices or if judges are being summoned to some spy agency’s office.

“As such, the high courts are under obligation to develop institutional mechanisms and protocols for preventing intrusions into judicial affairs of all courts subordinate to them and to revise their respective codes of conduct for judicial officers and staff of courts subordinate to them.

"External judicial independence is undermined because external actors can more easily influence the court and its verdicts if they only have to secure the cooperation of one person – whether through fear or favour,” it said.