Members of the Pakistan Bar Council (PBC), the country's apex body of lawyers, have approached the Supreme Court and filed an application in a suo moto case regarding the letter of six Islamabad High Court (IHC) judges, in which they accused the country's security agencies of interfering in the judicial process.
PBC's members requested the top court to restrain members of the executive and security agencies from interfering in the judiciary's functions and to prosecute and hold accountable those members who are responsible for such interference.
The petition filed by PBC members contended that "the primary job of the members of the executive and intelligence agencies is to serve the public and act in their best interest as opposed to furthering their own political interests / agendas."
The PBC members who filed the petition included former Supreme Court Bar Association of Pakistan (SCBAP) president Abid Zubairi, PBC's former executive committee member Chaudhry Ishtiaq Ahmed, PBC member from Balochistan Munir Kakar, Shafqat Mehmood Chauhan, Shahab Sarki and Tahir Faraz Abbasi.
"In any democratic society, no impunity can be attached to such illegal and unconstitutional actions of the executive and the intelligence agencies; therefore, the same ought to be thoroughly investigated, and the perpetrators of such crimes must be brought to justice," the petition stated.
The petitioners pointed out that the letter from the six judges of the IHC and the 2018 speech of Justice (retired) Shaukat Aziz Siddiqui are evidence of interference by the executive and intelligence agencies into the affairs of the judiciary and how they were becoming increasingly common in Pakistan's judicial system.
"Interference in judicial matters is not within the mandate of the executive or intelligence agencies, and neither is the surveillance of judges without their permission," the petition said, adding, "Such surveillance of judges, or any ordinary citizen of Pakistan, is a serious breach of their fundamental rights to privacy and liberty enshrined in the Constitution of Pakistan, 1973."
Such alleged interference in the workings of the judiciary by exercising influence over judicial decisions through acts of coercion, threats or blackmail is illegal, arbitrary and unconstitutional. The alleged involvement of the executive in the functioning of the judiciary is against the principles of trichotomy of powers and independence of the judiciary, they further contended.
The petition pointed out that the decision to form an inquiry commission did not emanate from a full court meeting or a meeting of the Supreme Judicial Council (SJC), instead it came as a result of a meeting between the Chief Justice of Pakistan Qazi Faez Isa and other members of the Executive — Prime Minister Shehbaz Sharif and the Law Minister Azam Nazir Tarar.
"The full court meeting only reached a consensus by a majority in relation to the CJP meeting with the PM; however, no decision was made in the full court meeting to allow the federal government to create an inquiry commission in order to address the allegations raised in the letter."
It is quite apparent and obvious that the decision to form the commission is against the principles of independence of judiciary and fundamental right of access to justice, it contended, adding that the letter by the six judges of the IHC had highlighted "most serious" and "grave" allegations against members of the executive and intelligence agencies, which if proven to be true, would dismantle all trust and confidence that the public disposes in the judiciary and the judicial process.
"Therefore, any inquiry into the veracity of the allegations contained in the said letter must be perceived to be bereft of any bias or conflict of interest. However, a commission which has been constituted by the federal government cannot inspire any confidence amongst the people in the impartiality of the inquiry, and also undermines independence of judiciary access to justice and due process."
The petition contended that the decision to form the commission is also in conflict with the long-standing maxim that justice must not only be done but it must also be seen to be done.
"Justice will not be seen to be done if a commission created by the federal government, albeit headed by a retired judge, is made in charge of addressing allegations raised by members of the judiciary against members of the executive and intelligence agencies," PBC members feared.
The members of the PBC said that such a conflict of interest would taint the entire proceedings before the commission with bias and partiality.
"Such an inquiry will never be perceived to have been conducted by an impartial and independent form, and its results will forever be looked upon as unreliable."
Moreover, they contended that the six judges chose to address the letter to the Chief Justice of Pakistan, the chairman of the Supreme Judicial Council (SJC), members of the SJC and not to any member or branch of the executive.
"Therefore, it was for the Supreme Judicial Council to address the concerns and allegations raised in the said letter and refer the matter to the Supreme Court under Article 184 (3) of the Constitution."
The petitioners, in addition to requesting to become parties in the Suo Moto proceedings, also urged the top court to declare that the federal government's formation of the inquiry commission is against the principles of independence of the judiciary, access to justice, and rule of law and in violation of Articles 5, 10, 25, and 209 of the Constitution.
The petition further urged the top court to direct that strict notice be taken, at an institutional level, of the concerns raised by six judges of the IHC and fix responsibility on the members of the executive and intelligence agencies for interfering in the affairs of the judiciary across all levels, including the lower and superior judiciaries.
It further requested the top court to direct the SJC to prescribe guidelines to be observed by judges during instances of blackmail, coercion and harassment.
It is pertinent to mention here that the inquiry commission formed by the federal government with the former chief justice of Pakistan, Justice (retired) Tassaduq Hussain Jilani, collapsed after the latter refused to head the commission upon reviewing the terms of reference set for it by the government.