Courts Must Be Insulated At All Levels Against Any Intrusion That Weakens Its Fiat, Prestige

In a recent judgement, ustice Mansoor Ali Shah of the Supreme Court underlines the importance of defending judicial independence and prestige against any interference

Courts Must Be Insulated At All Levels Against Any Intrusion That Weakens Its Fiat, Prestige

Courts, as guardians of the rights of the people, must remain insulated and walled off at all levels of the judiciary against any intrusion that weakens its fiat and prestige. 

These observations were made by Supreme Court's Justice Mansoor Ali Shah in a seven-page judgement in a case wherein the applicant, Sultan Ahmed, had challenged the orders of the Balochistan High Court (BHC) regarding his conviction for contempt of court. 

A three-judge bench, headed by Justice Syed Mansoor Ali Shah and comprising Justice Syed Hassan Azhar Rizvi and Justice Shahid Waheed, decided the case. Justice Shahid Waheed, while agreeing with the views of Justice Shah, wrote an additional note in the verdict.

"It is imperative to protect and safeguard the district judiciary from any executive onslaught or intrusion that may weaken its institutional independence or tends to lower its judicial fiat and brings it into disrespect," the top court observed. 

"The need to protect judicial independence and safeguard the prestige and honour of the judges is essential to protect the public confidence and public trust reposed in the judiciary." 

The case

In the case, Sultan Ahmed was posted as the Assistant Commissioner in the Kalat district of Balochistan. At the moment, Muhammad Zahid was serving as a Qazi (a judicial office equivalent to that of a Civil Judge) in the district judiciary. 

On February 16, 2016, without the registration of an FIR, Sultan Ahmed raided the official residence of the Qazi, assaulted and arrested him on allegations of having illicit relations with a female
police constable, whose civil suit for correction of the date of her birth was pending adjudication in the court of the Qazi. 

The female police constable was also recovered from Qazi's house during the raid.

Sultan Ahmed then dragged the Qazi barefoot to the Levies Line in Kalat instead of to the local police station.

The Qazi was detained there for about six hours. During this period, no case was registered against him. He was finally released upon the intervention of the Commissioner and the District and Sessions Judge.

The next day, the incident was reported by the District & Sessions Judge Kalat to the registrar of the Balochistan High Court (BHC). 

The next day, the court's registrar placed a report before the vacation judge, who observed that the report raised serious issues on judicial independence in relation to judicial service. 

A judge of the Balochistan High Court (BHC) formulated certain questions in this regard and directed the registrar to place the matter before the chief justice. 

The registrar then put up the matter before the BHC chief justice, who ordered to treat the report as a constitutional petition and fixed it for hearing before a division bench of the high court.

On February 19, the Division Bench constituted a Commission, comprising a judge of the High Court, to probe the matter and file its report. 

The commission, after conducting a thorough inquiry into the facts, submitted its detailed report on May 2, 2016. The report found that the Qazi had issued warrants of arrest for Sultan Ahmed in the execution proceedings of a decree, and to avenge that, the appellant, in connivance with the constable, had trapped the Qazi while the lust of the Qazi provided the opportunity for this trap.

The commission further found that to satisfy his ego, Ahmed manhandled the Qazi while arresting him and taking him barefoot to Levies Line and did not proceed against the Qazi, a judicial officer, in accordance with 

In light of the commission's report, the Division Bench of the BHC issued notices to the appellant and the Qazi, Muhammad Zahid. 

In response, the Qazi tendered his resignation while Ahmed submitted his "unqualified apology". The divisional bench of the BHC considered Ahmed's apology but thought it was not fit to exonerate the accused of the charges against him. Instead, the division bench opted to award a lesser punishment to the assistant commissioner. 

Later, Ahmed challenged the punishment in the top court. 

"It is, however, true that when the accused offers an unqualified apology at an early stage of the contempt proceeding as a sincere and profound remorse, the courts generally drop such proceeding and discharge 
the accused while warning him to be careful in the future," Justice Shah observed, adding, "However, this is not an absolute rule to be followed invariably in all cases."

The courts may, he continued, despite the submission of an unqualified apology, convict the accused in the peculiar facts and circumstances of the case and may treat his apology only as a mitigating circumstance to impose a lesser punishment.

The top court further observed that public confidence and trust in the courts rests on the independence, impartiality, neutrality, openness and transparency of the judicial system; it lends the court its high moral authority and its decisions, unquestionable legitimacy. 

The judgment added that the Constitution protects judges of constitutional courts through the power of contempt under Article 204 of the Constitution and through the Supreme Judicial Council established under Article 209 of the Constitution, while it is Article 203 of the Constitution that safeguards the judges of the district judiciary by placing them under the protective umbrella of the high court of the respective province.

"Although the Supreme Court of Pakistan, as the apex court of the country, is the custodian of justice as well as of the courts dispensing justice throughout the land, the primary duty to ensure the protection of district judiciary is of the High Courts under whose supervision and control it functions." 

Justice Shah also observed that the act of assaulting and insulting while arresting a judge of the district judiciary, in the instant case, in open public gaze without any prior information to the District and Sessions Judge or the High Court is unprecedented. 

"The High Court has taken a lenient view in the matter of imposing punishment on the appellant because of his tendering an unqualified apology at the very early stage of the contempt proceeding and his young age."

The incident involved in the present case, however, brings to light a much-neglected area that weighs heavily on the independence of the judiciary, the judgment read.

"It is axiomatic that the independence of the judiciary rests on judicial, financial and administrative autonomy.

"However, the administrative autonomy has been somewhat wanting over the years in the area of security of judges.

"The security and protection of judges is not an internal function of the judiciary but is dependent on and in control of the 

The judgement added that the district judiciary protects the common people at the grassroots level against the misuse or abuse of executive power by the district administration and police. 

"In our view, the district judiciary should be independent in all respects and in particular in the matter of its security from the district administration and police, and the High Courts should take up this matter with the respective Provincial Governments and progressively proceed in 
establishing their own security agency, like their Process Serving Agency. 

However, until then, the High Courts should take stern action against the district executive officers involved in illegal confrontational acts with the district judiciary under the Contempt of Court Ordinance."

The court subsequently dismissed the appeal filed by Sultan Ahmed.

The writer is an Islamabad based journalist working with The Friday Times. He tweets @SabihUlHussnain