The Sindh High Court (SHC) has opined that the matter regarding the alleged interference in the judiciary by intelligence agencies, as raised by the six Islamabad High Court (IHC) judges, needs to be probed.
Judges of the SHC said that considering the nature and gravity of the interference expressed by the six judges of the IHC, it certainly requires a probe and institutional response. However, this must be in accordance with the law and settled principles of independence and separation of judiciary from the executive, stated a proposal sent by the SHC in pursuance of the Supreme Court's order, which sought recommendations from all the high courts to determine through consensus an institutional response and formulation of mechanism to address the issue raised by IHC's judges.
The SHC's proposal was finalised during a meeting of the court's administration committee. It was attended by SHC Chief Justice Aqeel Ahmed Abbasi, along with Justice Muhammad Shafi Siddiqui, Justice Naimatullah Phulpoto, Justice Salahuddin Panhwar, and Justice Muhammad Junaid Ghaffar. The Balochistan High Court also submitted its reply.
During the meeting, the judges observed that except in some individual cases of contempt of court, till date, no criminal or civil proceedings appears to have been initiated against such individuals or vested interest groups, who have been slandering and defaming the judges through social media platforms, or directly or indirectly approaching the judges to exert undue pressure or influence in discharge of their judicial functions.
"It has been resolved that this menace should be brought to an end, whereas these roguish elements should be taken to task by prosecuting them in accordance with the law," the SHC proposal submitted before the top court observed.
The SHC judges unanimously resolved that the dignity and honour of judges at all tiers of the judiciary, who have the same rights as other citizens, must be protected accordingly.
It has also been resolved unanimously that the persons, groups or institutions levelling false and scandalous allegations or making attempt to either interfere or influence their judicial work shall be prosecuted under the following provisions of the Pakistan Penal Code and put to trial for committing offences of defamation, criminal intimidation or creating hindrances towards the dispensation of justice.
It was further resolved that in appropriate cases, provisions of the Defamation law, Cyber laws and Contempt of Court Act can be invoked for prosecuting and affixing liability on the impish. It has further been resolved that similar treatment shall also be meted out to the vested interest groups, executive, and institutions, including law enforcement agencies, whereas an institutional response, besides the above legal actions, shall also be given by the relevant judicial forum, keeping in view the nature and gravity of interference made.
It was proposed that all official communications and mail be addressed to the Registrar of the Superior Courts, not anyone else.
The proposal stated, "The correspondence in the name of judges of the high court or the apex court shall not be ordinarily entertained unless tested and verified by the authorised officer of the court and/or after scrutiny by law-enforcing agencies, under their supervision."
The SHC further proposed that the relevant government authorities/functionaries shall devise a mechanism requiring all the postal/courier services to preserve the authentic personal information of the individuals sending mail to the judges.
"There shall be no direct access allowed to the executive, law enforcing agencies to the judges of the superior courts or to the judges of district judiciary and special courts, during discharge of their judicial functions, particularly in connection with any pending case," the proposal stated, adding that in matters of some national interest or security, the proper course shall be adopted by making a formal request in writing through proper channels. Only after approval of the chief justice of the respective court, such access may be allowed.
"All monitoring/inspecting judges of the high courts, within their respective districts, may closely monitor any untoward incident or scrutinise complaints received from judicial officers and pass appropriate orders for purging of nuisance, besides referring the matter to the chief justice(s) of the respective high courts for initiation of contempt of court proceedings."
The SHC judges further resolved: "All the judges, judicial officers, and court staff should vigorously and jealously guard the independence of the judiciary and its integrity."
The judges further proposed abstinence from public discussion on matters which are sub-judice before courts of law and dialogue on disposition, personal or matters of the judges and judicial officers.
BHC says IHC should have resolved matter
Separately, an all-judges committee of the Balochistan High Court (BHC) noted regrettably that the grievance of the judges of the IHC should have been resolved at the high court level either administratively or by resorting to contempt proceedings under Article 204 of the Constitution and relevant provisions of the Contempt of Court Ordinance, 2003.
In its reply, the BHC further stated that the legislature in its wisdom, while framing the Constitution, has provided independent high courts in the country to exercise powers within their respective jurisdictions and since high courts are not under the supervisory or administrative control of the Supreme Court, therefore such issues should have been resolved by the respective high courts at their level. The saying goes, perceptions are stronger than reality; therefore, one negative impact of this whole episode upon the judicial system of the country is that it has, to some extent, shattered the trust of the people of the country regarding the independence of the judiciary.
"It has created a false notion amongst the masses that judge of the high court is not only vulnerable but helpless and hopeless as well," said the BHC, adding that the slogan' justice for Mr Justice is ironical'.
"In view of the chequered constitutional and judicial history of the country, which is marred with unconstitutional adventurism the contents of letter written by the Judges of Islamabad High Court cannot be ignored," it said, adding, "It is high time that instead of shying away from harsh realities the bull must be taken by the horns."
The BHC reply recommended judgments on the Iftikhar Muhammad Chaudhry case, Chief Justice Isa case, wherein he challenged presidential reference, and Justice (retired) Shaukar Siddiqui case.
"Whether there has to be institutional response to illegal interference in the judicial work of any judge and what should be the mechanism, this question ultimately has to be addressed by the Supreme Court, but for ensuring the independence of the judiciary, judges must not be left vulnerable to the likes and dislikes of certain State agencies," BHC said.
An 'open secret'
It is pertinent to mention here that the Peshawar High Court (PHC) and Lahore High Court (LHC) have also admitted to interference by intelligence agencies in judicial affairs, terming it as an open secret.
"Some of the participants/judges have expressed and shared the trauma, which they underwent due to the interference of the intelligence agencies when some political cases came up for hearing before the bench, which was presided over by them," PHC said.
"They (participant judges) have also complained about the direct approach to them by the members of the intelligence agencies seeking favour(s) in deciding political cases. However, when the matters were decided impartially, they received life threats through non-state actors from the neighbouring country, Afghanistan," it added.
"The matter was also discussed with the Counter-Terrorism Department (CTD) but with no progress. Similarly, this fact was also brought into the notice of all concerned at the highest level," PHC further said.
Likewise, the LHC, in its reply, said that a majority of the judges present in the meeting also observed with grave concern that the interference of agencies/executive in the independence of the judiciary is an open secret. It further stated that the earlier judgments of the Supreme Court to prevent this interference had turned out to be ineffective.
In its reply, the LHC stated that the intelligence agencies involved in phone tapping or audio/video recording etc. of judges and their families should be identified and proceeded against in accordance with the law.
LHC also proposed that it should be mandatory for every judicial officer to immediately disclose to a district and sessions judge, the LHC chief justice and the chief justice of Pakistan if any attempt is made to interfere in their work.
The LHC added that there always remains a greater chance of interference in anti-terrorism courts, NAB courts and anti-corruption courts, where sensitive matters are decided.
The LHC proposed that "the high courts should be empowered to directly make transfers/postings of the judges of said courts without approval/interference of the federal/provincial governments and that relevant provisions of law should be amended."
If the relevant judge of the high court or the district judiciary himself does not initiate contempt or other legal proceedings, in that case, he may report the incident with full details to the Chief Justice or the district and sessions judge, as the case may be, the proposal maintained.
"On receipt of the report from a judge of the high court, the chief justice shall constitute a suitable bench comprising of at least five (05) senior judges of the court to hear and decide such a case.
"In the case of an incident reported by a judge of the high court, the matter shall also be brought to the notice of the chief justice of the Supreme Court of Pakistan, who may also take proper action on the said complaint if deemed necessary, provided the cognisance of the matter has already not been taken by the concerned judge himself or the high court."
On receipt of a report from a judge of the district judiciary, the District and Sessions Judge, apart from taking any other legal action, shall proceed in the matter as envisaged under Section 228 of PPC. The judge shall also report the matter to the chief justice of the relevant high court. A similar procedure shall be adopted by judges of special courts.
The LHC said that the presumption of truth shall be attached to the complaint/ affidavit of a judge. Moreover, judge should not be liable to be cross examined by any party to the case.