On 26th March a letter, dated on the 25th, was made public whose contents urged the Supreme Judicial Commission to investigate serious allegations of the intelligence agencies being involved in coercion and blackmail against Judges across the country in the quest for favorable verdicts. The letter highlighted a few of such instances as examples, which included acts of kidnapping, intimidation by the usage of explosive materials and the violation of privacy through the installation of cameras in sensitive locations. The letter concluded with a request to inquire into these instances and to further ask the executive whether it was a policy decision by the intelligence agencies to intimidate the judicature. The letter was signed by 6 venerable Justices of the Islamabad High Court.
The letter has been called by some as one of the biggest scandals in the history of the judiciary, and has been touted as a revelation into the interference in the judicature by the executive. Ironically this revelation has hardly brought to light any fact that was not well known before. It is a well-known fact that intelligence agencies do interfere in judicial affairs and this is not just limited to said agencies. This interference has been brought to notice multiple times in the history of the country as was seen within the Supreme Court in the famous precedent Mohtarma Benazir Bhutto and Others v President of Pakistan and Others (1998 PLD SC 388) which revealed communication devices of judges and politicians were tapped by the intelligence bureau.
In 2007, as Pakistan faced an Emergency Ordinance by then President Musharraf, the Times published a story wherein it was revealed that 3 of the 11 Justices were being blackmailed by the intelligence agency to give favorable verdicts. Further, we have multiple examples of the judicature being forced to validate unconstitutional actions and illegal laws passed by an executive figure, from the dismissal of the Constituent Assembly by Ghulam Muhammad to the martial laws that have plagued our history, thus there can be no doubt that our judicature has never been independent.
Yet, this is just the tip of the iceberg as these historic examples often take the limelight in contrast to day-to-day examples that are witnessed by the legal fraternity and the litigants. Judges are often pressured or approached to give favorable orders and judgments benefiting one party. One of the first things a litigant seeks in a Judge is whether any network exists where he could be approached. More powerful and criminal individuals utilize a mix of influence and intimidation to pressure the judicature. Even amongst lawyers, the concept is that it is advisable to try for an influential post such as Civil Judge or Session Judge, retire after a short period and then enter into private practice so that individuals would be more inclined to give you their case, thinking you can influence the Judge through camaraderie.
We have multiple examples of the judicature being forced to validate unconstitutional actions and illegal laws passed by an executive figure, from the dismissal of the Constituent Assembly by Ghulam Muhammad to the martial laws that have plagued our history, thus there can be no doubt that our judicature has never been independent.
Similar importance is placed on the position of Bar Presidents. It has become such a common concept that the harrowing idea of a judge being approached or the judiciary being compromised has become a common discussion with litigants where they demand to know how said judge could be approached and lawyers often blame their incompetence and failures on the excuse that judges were influenced. The common terminology is “approach lag gayi” meaning “he has been influenced.”
Having said that, it is also important to note that there are examples of honorable individuals who have stood against intense pressure and threats to pass just and fair verdicts, and these individuals are commended within the legal fraternity with respect. However, there can be no doubt that the judicature is compromised to the grassroots.
So in light of such “revelations,” what has been the response of the Executive and the Judicature? The Honorable Chief Justice announced that such interference was intolerable and the same was resounded by the Prime Minister. An inquiry commission has been set to investigate these allegations and this is being led by the esteemed ex-Justice Tassaduq Hussain Jillani, a mild-mannered individual with a fantastic legal history behind him. Unfortunately, Jillani has recused himself from heading the Inquiry Commission, and the road ahead is not so pleasant. The findings of the Inquiry Commission are not binding, nor is the executive obligated to implement the recommendations of the Commission.
The Chief Justice of Pakistan, who should have considered the revelations within the letter as an attack on the institution by the executive, decided to leave the matters in the hands of said executive, which has a history of judicial interference and is known to have questionable to limited control on its branches, especially the military and its intelligence agencies.
Ideally, the Chief Justice should immediately constitute a Judicial Commission to not just look into the allegations made within the letter, but to investigate all attempts and incidents of interference in judicial affairs, including those done by civilians and for the Commission to provide a detailed public report with short-term and long-term recommendations to control this interference.
Whilst the executive and judicature may treat these “revelations” as a mere nuisance, there can be no doubt that the people of Pakistan have completely lost their faith in the judiciary and are actively vocal in their proclamation that justice cannot be found here.
In addition to the commission, the Supreme Court should immediately take suo motu proceedings regarding such allegations with the executive being ordered to promptly halt any attempts of interference in judicial affairs with the Supreme Judicial Commission providing short-term SOPs (Standing Operating Procedures) for any judge across Pakistan being approached or coerced to pass any order whilst formulating long-term SOPs for judges to use whenever they face such an action.
However, the calm procrastination we have seen in the judiciary tells us that the Commission will largely be ineffective and the matter will be buried as witnessed multiple times with such reports either ignored or hidden from public view.
Whilst the executive and judicature may treat these “revelations” as a mere nuisance, there can be no doubt that the people of Pakistan have completely lost their faith in the judiciary and are actively vocal in their proclamation that justice cannot be found here. I have often stated that this chasm of mistrust between the judicature and the people of Pakistan is widening to the extent that if the system that is in place within Pakistan did not force an individual to seek judicial orders for the purpose of partition of properties, inheritances, divorces, insurance or service matters etc., along with the state monopoly of violence against criminals, then they would not come near us, much less ask us for justice.
The judicature needs to realize that this is an opportunity not only to bridge said chasm by showing how important independence and fairness are to the judicature, but also to send a message that the judicature truly is the shield and the sword for the people of the country. If this opportunity is missed due to fear and callousness, then every allegation that the people of Pakistan make against the judicature will become justified. After a long time, the ball is in the court of the judicature.