‘Interference’ by ‘operatives of intel agencies: 6 IHC judges seek guidance from SJC

ISLAMABAD: Six judges of the Islamabad High Court (IHC) have written a letter to the Supreme Judicial Council (SJC) against the alleged “interference” and “intimidation” by the “operatives of intelligence agencies.”

The IHC judges including Justice Mohsin Akhtar Kayani, Justice Tariq Mahmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, Justice Arbab Muhammad Tahir and Justice Saman Raffat Imtiaz Tuesday wrote the letter to SJC seeking guidance on the interference of intelligent agencies in judicial functions.

The judge stated in the letter that they are writing to seek guidance from the Supreme Judicial Council (SJC) with regard to the duty of a judge to report and respond to actions on part of “members of the executive, including operatives of intelligence agencies, that seek to interfere with discharge of his/her official functions and qualify as intimidation, as well as the duty to report any such actions that come to his/her attention in relation to colleagues and/or members of the courts that the High Court supervises.”

They concluded, “We, therefore, request that a judicial convention be called to consider the matter of interference of intelligence operatives with judicial functions and /or intimidation of judges in a manner that undermines independence of the judiciary. Such convention might provide further information as to whether judges of other High Courts have had experiences similar to those narrated above. Such institutional consultation might then assist the Supreme Court to consider how best to protect independence of the judiciary, put in place a mechanism to affix liability for those who undermine such independence and clarify for the benefit of individual judges the course of action they must take when they find themselves at the receiving end of interference and/or intimidation by members of the executive.”

The letter said that they believe it is imperative to inquire into and determine whether there exists a continuing policy on part of the executive branch of the state, implemented by intelligence operatives who report to the executive branch, to intimidate judges, under threat of coercion or blackmail, to engineer judicial outcomes in politically consequential matters, in view of the following events.

It mentioned that there emerged a difference of opinion between members of the bench hearing the case titled Muhammad Said vs. Imran Ahmed Khan Niazi (Writ Petition No.3061 of 2022). The matter was reserved to determine the question of maintainability on 30.03.2023. The presiding judge circulated his draft opinion finding the petition maintainable, while the other two disagreed with it and wrote, a different opinion, which was circulated on 19.04.2023.

“Considerable pressure was brought to bear on the judges who had opined that the petition was not maintainable, by operatives of the ISI, through friends and relatives of these judges. Fearing for their security, they sought additional protection for their homes. One of the judges had to be admitted in a hospital due to high blood pressure caused by stress.

The matter was brought to the attention of Chief Justice IHC. It was also brought to the attention of the then Chief Justice of Pakistan during a meeting at his residence on 02.05.2023. On 03.05.2023 six judges of IHC met with Chief Justice IHC to share their concerns re efforts of ISI operatives to affect judicial outcomes. He advised that he had already spoken to the DG-C of ISI and had been assured that no official from ISI will approach judges of the IHC. The interference on part intelligence operatives however continued,” said the letter.

It also pointed out that in May 2023, the brother-in-law of a judge of IHC was abducted by armed men. He was returned at night approximately 24 hours after his abduction. He subsequently revealed that he was abducted by individuals who claimed to be operatives of the ISI, and after having undertaken surveillance of members of the judge’s family, including his son, had selected the brother-in-law for abduction. During his confinement he was administered electric shocks.

He was also forced to record a video on the instruction of his abductors and tortured into making false allegations. Subsequently, a complaint was filed against the judge of IHC before the SIC, accompanied by an orchestrated media campaign to bring pressure to bear upon the judge to resign.

It further said that on 03.05.2023, IHC’s inspection judge for District East Islamabad reported to Chief Justice IHC that judges of the district court were facing intimidation and at least one Additional District and Sessions Judge had been threatened and crackers were thrown into his house to intimidate him. The matter was also discussed in the presence of all judges of IHC in the tea room. The relevant District and Sessions Judge overseeing Division East was immediately called to IHC to verify reports of interference by operatives of intelligence agencies into the functioning of the district judiciary that he had shared with the inspection judge of IHC.

He confirmed such reports in the presence of Chief Justice IHC and another judge of IHC. The said District and Sessions Judge was later made officer special duty and transferred to IHC, before being sent back to Punjab as he was a judicial officer on deputation. He is now posted at Bahawalpur.

The IHC judges also mentioned that on 10.05.2023, the judges of the IHC sent a letter to Chief Justice IHC recording incidences of operatives of the ISI seeking to interfere with judicial matters and requested that appropriate contempt proceedings be initiated to ensure that Islamabad High Court continues to discharge its functions without interference by the executive and/or intelligence agencies but no proceedings were however initiated

The letter said that the judges of IHC deemed it appropriate to bring such matters to the attention of the Supreme Court. An appointment was sought with the Chief Justice of Pakistan. On 19.05.2023, six judges of IIC who were in attendance in office on that date (Chief Justice IHC was in Lahore and one judge was undergoing a minor surgery) met with the Chief Justice of Pakistan, which meeting was also attended by Justice Ijaz-ul-Ahsan. The matter was brought to their attention and judges of the IHC were advised that the Supreme Court would intervene after the Chief Justice of Pakistan had an opportunity to consult with his colleagues. We also met with Justice Qazi Faez Isa, the then Senior Puisne Judge, on the same day to bring the matter to his attention as well.

It continued that during the summer of 2023, one of the judges of IHC moved into the official residence provided to him. During routine maintenance of the house, one of the wall-mounted lights needed to be removed, It transpired that a video camera was affixed in the light fixture, which was also equipped with a SIM-card, and was recording audios and videos from the drawing room of the residence of the judge and transmitting them somewhere. Another such camera was installed in the what was considered to be the master bedroom of the judge’s home. The USBs from the surveillance equipment were recovered and they reflected stored private videos of the judge and his family members, which were played in the presence of a number of judges of IHC to confirm their content.The matter was brought to the attention of Chief Justice IHC.

It added that there has been no determination of who installed the equipment and who is to be held accountable for putting in place a design to make recordings of the judge and his family in the privacy of their home.

The letter also said that five judges of IHC wrote a letter to Chief Justice IHC on 12.02.2024, mentioning accounts heard by us with regard to interference by operatives of intelligence agencies into the dispensation of duties and functions by judges of the District Judiciary, undermining their autonomy and independence. A full court meeting was sought to address concerns, inter alia, regarding independence of the judiciary. It was reiterated in this letter that judges of IHC had been subjected to illegal surveillance that violated their privacy in the most abhorrent fashion.

The judges said that aforementioned events suggest that if in our judicial history there were ever a design to undermine the independence of the judiciary and influence the outcome of cases of interest to the executive branch, such design may not have been discarded. In the matter of Shaukat Aziz Siddiqui allegations of interference by operatives of ISI have been dealt with and relief has been granted to a former judge of IHC who was wronged. We believe that while such action was necessary, it may not be sufficient.

“As judges, we have all sworn constitutional oaths to dispense justice to do right by all manner of people, in accordance with the Constitution and the law, without fear or favour. It is public interest in the ability of the judiciary to dispense justice to every litigant without being influenced by extraneous considerations that such oath is meant to protect. While declaratory relief can correct a wrong as a historical matter, there is need to ensure that independence of the judiciary is upheld in real time, to bolster public faith in the ability of judges to be neutral arbiters of the law,” maintained the letter.

It further said that the Code of Conduct for judges as prescribed by the SJC provides no guidance on how judges are to react when sought to be influenced or coerced by members of the executive, including intelligence operatives. It is unclear how a judge can prove such interference and intimidation if he/she reports the same, as the onus to do so would appear to be on the judge. It is also unclear if judges are to individually ward off acts aimed at intimidating them and interfering with discharge of their functions or the judiciary as an institution can and will take steps to ensure that individual judges are not required to fend-off coercion and intimidation on their own. While we fully support the need for judicial accountability, the trigger for searching scrutiny of a judge's conduct must not be his refusal to succumb to intimidation by intelligence operatives or a judicial decision to the dislike of the executive branch.

They said, “We believe that individual judges must not be required to be as brave as Justice Qazi Faez Isa, the Chief Justice of Pakistan, to fight persecution at the hands of the executive on their own, or as resolute as Justice Siddiqui, to continue to fight a wrong for personal vindication long after removal from office. If independence of the judiciary is a salient feature of the Constitution meant to uphold fundamental rights and dispense justice in accordance with law in public interest, there is need for an institutional response to uphold and protect independence of the judiciary.”

Copyright Business Recorder, 2024