ISLAMABAD: Justice Yahya Afridi opposed taking suo motu on Islamabad High Court (IHC) judges’ letter of “interference” and “intimidation” by the “operatives of intelligence agencies” in judicial functions.
A seven-judge bench, headed by Chief Justice Qazi Faez Isa and comprising Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Jamal Khan Mandokhel, Justice Athar Minallah, Justice Musarrat Hilali and Justice Naeem Akhtar Afghan on 3rd April heard the suo moto.
In the order, the bench stated that a suo motu notice was taken owing to the seriousness of the matter, while the meeting with the Prime Minister was also held considering the gravity of the issue.
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Justice Afridi, who was part of the bench which heard the suo motu, but later on recused from the bench, in his note, maintained that the suo motu notice was taken by the apex court in ‘good faith’; however, it may harm the independence of high courts and their chief justices.
However, he wrote; “The proposed action of suo motu would negate the lessons we have learnt from our recent judicial precedents and, thus, we must not be moved into action by public sentiments no matter how pressing the issue may appear.”
“One must also not ignore that the High Courts under the Constitution are independent establishments, envisaged to regulate not only their administrative functions, but also provide security to and safeguard judicial officers in their discharge of judicial functions.”
“The inaction on the part of the Chief Justice or the Judges of the High Court not to exercise the jurisdiction and powers vested in him or them, should not lead this Court to super-impose the exercise of its jurisdiction under Article 184(3) of the Constitution.”
“This may affect the functioning of the worthy Chief Justices and worth judges of the High Courts, and would to my mind amount to interference in the independence of the High Courts,” he added.
Justice Athar Minallah also wrote an additional note saying “he could not convince himself” to agree with paragraphs 1 to 12 of the SC written order.
In a 5-page note, he maintained that “interference” in cases with political implications cannot be ruled out. Terming the IHC judges “whistleblowers”, Justice Minallah insisted that the letter of the judges shows that they kept raising the issue at every relevant forum. However, the “institution” did not respond despite the seriousness of the matter.
The high court judges did what a judge is bound to do by oath, he stated, adding that there is no reason to doubt them. “These judges who raise their voice should not face problems,” the judge wrote in his note. The high court judges have sworn to uphold the Constitution, he added.
He also highlighted that the question of whether the prime minister can be summoned or not is yet to be considered by the full court. “It is yet to be determined whether the independence of the judiciary is affected by the constitution of commissions by the government or not. “It is not appropriate to comment on the questions that are before the court,” Justice Minallah maintained.
The SC judge stated that the administration must prove before the full court that there is no interference on its behalf.
Justice Minallah stressed the credibility and truthfulness inherent in their oaths to uphold the Constitution. He asserted that their concerns should be given weight unless proven otherwise.
“The judges have highlighted the institutional insensitivity. The attorney general has referred to political engineering in specific politically consequential matters in the past while it appears from the letter of the six judges that it continues unabated even today,” the note read.
The impunity against intimidation of the judges and interference in judicial proceedings in politically consequential matters cannot be denied, rather it has been affirmed by this court repeatedly, it added.
Justice Minallah also wrote that the IHC judges have sworn oaths under the constitution and, therefore, a presumption of credibility and truth is attached to what they have highlighted in the letter unless it is rebutted.
“They have done what every judge is bound by the oath to do; uphold the Constitution and the independence of the judiciary. There is no conceivable justification to doubt their intention in bringing on record a matter of the highest public importance.”
He noted that the letter was in the nature of an internal institutional correspondence and it was not meant to be made public. He further emphasised that the judges had reasonable grounds to seek guidance and that is what they had explicitly sought. “They had blown a whistle internally and as whistleblowers, they were required to be dealt with carefully because the whistle-blowing was in the public interest.”
He stressed that the SC in the present proceedings also has to consider evolving jurisprudence which does not deter internal whistle-blowing because of the public importance associated with it.
“No one within the institution must fear that blowing the whistle internally could lead to unimaginable consequences having the effect of being thrown to the wolves. Such an approach would profoundly undermine the internal independence of the judiciary,” the he said.
“It was, in my opinion, premature for the executive to constitute a commission and, prima facie, in breach of the independence of judiciary. The matter is now sub-judice before the Full Court. The full Court will consider whether an inquiry is required and, if so, the nature of the inquiry is also likely to be determined on the judicial side having regard to safeguarding the independence of judiciary,” Justice Minallah said.
Copyright Business Recorder, 2024
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