A body of lawyers in Balochistan Saturday announced plans to challenge the formation of an inquiry commission by the federal government under the supervision of former chief justice of Pakistan Tassaduq Hussain Jillani to probe a letter by six judges of the Islamabad High Court which alleged interference by officers of a security agency.
However, a split has emerged among lawyers in the country on the subject after a national body of lawyers announced Saturday its support for the commission.
Challenging the commission
The Balochistan High Court Bar Association (BHCBA) has decided to challenge the formation of the inquiry commission before the Supreme Court.
BHCBA and Pakistan Bar Council (PBC) member from Balochistan Munir Ahmed Kakar told The Friday Times on Saturday that the association has rejected the federal government's decision to form a one-man inquiry commission.
He said that the BHCBA shall file a petition under Article 184(3) of the Constitution in the Supreme Court in the coming week.
He argued that the BHCBA believes that the allegations levelled by the six judges of the Islamabad High Court (IHC) were quite serious in nature and should be probed by serving judges of the superior judiciary.
Kakar said that in their petition, they shall request the Supreme Court to form a judicial commission consisting of five senior judges of the top court to probe the matter. This is not a new idea, and it has already been proposed by senior lawyer Hamid Khan, who is aligned with Pakistan Tehreek-e-Insaf (PTI).
The PTI has already rejected any commission to be formed by the government and has insisted that the top court take this up as a suo moto.
Kakar said that at least six members of the PBC support the demands made by the BHCBA.
If a petition is filed, it shall first be scrutinised by the registrar's office at the Supreme Court. If it does not attract objections from the registrar's office, it will be placed before a three-judge committee — created under the Practice and Procedure Act 2023 — to decide whether the matter should be adjudicated under Article 184(3) of the Constitution.
It is pertinent to mention here that this is the second petition to be filed on the matter under Article 184(3) of the Constitution.
Last week, after the letter came to light, Advocate Mian Dawood submitted a petition to the Supreme Court, requesting it constitute a high-powered inquiry commission to probe the allegations levelled by IHC judges. He further requested the top court to take strict action or issue direction against all those found guilty of misconduct in the probe.
Chief Justice Qazi Faiz Isa heads the three-member committee, which decides whether petitions filed under Article 184(3) should be heard and the constitution of the bench that should hear them. The other members include Senior Puisne Judge Justice Mansoor Ali Shah and Justice Muneeb Akhtar.
In the days following Dawood's petition, Justice Shah accompanied CJP Isa to his meeting with Prime Minister Shahbaz Sharif two days ago, during which it was proposed that the government form an inquiry commission to probe the allegations.
Kakar believes that the contents of the letter penned by IHC's judges unequivocally indicate interference in the administration of justice, infringement of fundamental rights, and unlawful intrusion into the rule of law and access to justice by intelligence agencies.
He said that it was alarming to learn that the residences of judges have been bugged, thereby not only violating their privacy but also providing ammunition to blackmail them.
"As an institution, we must rally to uphold the integrity and independence of the judiciary during this critical juncture. Regrettably, Pakistan's judicial history is replete with decisions that have undermined the integrity and dignity of the judicial system," Kakar lamented.
He wondered how could Chief Justice of Pakistan Isa endorse the formation of an inquiry commission by the government, which itself was the beneficiary of political engineering.
Those keeping an eye on the recent controversy and the chemistry between Chief Justice Isa and the federal government see little chance for either petition to be entertained. They note that the judiciary floated the suggestion of meeting with the prime minister and for the government to form an inquiry commission after evolving consensus among a majority of the Supreme Court's judges.
Legal experts say the Terms of Reference (ToRs) for the inquiry commission had been discussed in detail by CJP Isa and Prime Minister Shehbaz Sharif.
PBC throws its weight behind govt commission
Meanwhile, the formation of the commission seems to have split lawyers across the country after the apex national body of lawyers, the Pakistan Bar Council (PBC), endorsed the federal government's decision to appoint former chief justice of Pakistan Justice (retired) Tassaduq Hussain Jillani as the head of the inquiry commission to probe allegations levelled by six IHC judges. The Punjab Bar Council also separately welcomed the commission.
"A retired Chief Justice of Pakistan, Justice Tassaduq Hussain Jillani, has been appointed to head the commission inquiring into such allegations, a decision that they welcome and support," read a statement formally issued by PBC on Saturday.
PBC office bearers "strongly condemned, criticised and rejected" the demand of a political party (the PTI) which called for the resignation of CJP Isa.
PBC's Vice-Chairman Riazat Ali Sahar and Executive Committee Chairman Farooq Hamid Naek characterised PTI's demand as a component of a premeditated smear campaign against the chief justice, which persistently tarnishes and targets the chief justice for political advantage and damaging the judiciary.
The PBC supported the idea that the allegations put forward by the six judges of the IHC should probed promptly by the forum recently discussed and decided in the meeting between CJP Isa and PM Shehbaz.
The PBC asserted in its statement that "if proven true, these allegations present a grave threat to the institution, necessitating serious action."
"Judges must be afforded privacy and protection, which is the prime responsibility of the state," it added, further maintaining that other institutions have no authority to penetrate the judiciary in any manner.
"Any threat or activity aimed at undermining the judiciary should be met with stringent action."
The PBC reiterated that they and the entire legal fraternity stand firmly with the chief justice of Pakistan and the entire judiciary.
They emphasised that it is utterly unacceptable and intolerable for the council and the legal fraternity to stand silent over such attacks upon the judiciary.
Furthermore, they expressed their unwavering support for the judiciary as an institution, ensuring its integrity and independence.
It said the legal fraternity stands in solidarity with the judiciary and aims to identify an appropriate remedy for its concerns.
The PBC said they would convene a general body meeting very soon to discuss the matter further.
It is pertinent to mention that the Punjab Bar Council, in its press statement, said that criticising the establishment has become easy and fashionable. The Punjab Bar Council demanded a comprehensive probe into the matter considering all aspects.
Judicial abdication
Earlier on Saturday, the federal government approved the name of Justice (retired) Tassaduq Hussain Jillani, former chief justice of Pakistan, as the head of the inquiry commission.
The inquiry commission shall probe the veracity of the allegations, determine whether any officer was directly involved in interfering in the judiciary's affairs, and recommend action against any agency, department, or state institution based on the facts it determines.
The commission will have the power to probe any other matter it deems important and related to the instant case.
Legal wizards questioned whether the inquiry commission should recommend to the federal government that it approach the Supreme Judicial Council (SJC) if allegations levelled by IHC's judges are found not to be factual.
They further say that an inquiry commission headed by a retired judge shall be empowered to summon serving judges, further raising questions about whether the serving judges would prefer to appear before and answer the questions of a retired judge.
They add that the judges will have to submit their affidavits in light of which the accused from the relevant security agencies would be asked to submit their response. They fear the letter could backfire as it could prove difficult for judges to establish their allegations against agencies.
A seasoned former additional attorney, Tariq Mahmood Khokhar, told The Friday Times that commissions of inquiries in Pakistan are not always effective.
"They lack inherent power to effect change; they rely on outsiders (usually governments) to implement their recommendations," he said, adding that democratic accountability through parliamentary committees of inquiries is far more effective.
"Better still would have been the superior courts adjudicating under the existing law to safeguard their independence," said Kokhar. He added that judges are, and ought to be, the guardians of their independence.
"It is difficult to make sense of an institution known for judicial activism, choosing judicial abdication in matters of alleged coercion against judges," he said.