IHC judges seek judicial commission over alleged interference of intelligence agencies

ISLAMABAD: In an unusual development, six judges of the Islamabad High Court (IHC) have written a letter to the Supreme Judicial Council to call a full-court meeting to look into the alleged interference and influence of members of the executive and intelligence agencies in the affairs of the judiciary.

The letter, penned by six judges of the Islamabad High Court, has requested a judicial convention to address the issue of interference by the executive and intelligence agencies and their influence on judges.

The judges who wrote to the Supreme Judicial Commission are Justice Mohsin Akhtar Kayani, Justice Tariq Mahmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq, Justice Arbab Muhammad Tahir, and Justice Saman Rafat Imtiaz.

Copies of the joint letter written by the judges have been sent to all members of the Supreme Judicial Council and all judges of the Supreme Court.

Read more: CJP summons Supreme Judicial Commission meeting

The letter mentions the intervention of the executive and intelligence agencies in judicial matters. It states that calling for a convention on interference in judicial affairs will also bring to light the interference of intelligence agencies in other courts.

The letter asserts that the convention will help in the independence of the judiciary. The judges who wrote the letter have also included letters written to the Chief Justice of the Islamabad High Court in 2023 and 2024, detailing attempts to pressure them.

The letter mentions that the issue of continuous pressure from the ISI on judges was raised with the Chief Justice of the Islamabad High Court, who stated that he had already taken up the matter with the DG ISI and had been assured that such interference would not happen again; however, the interference continues unabated.

The joint letter states that Justices Mohsin Akhtar Kayani and Arbab Tahir had declared the Tyrian White case against Imran Khan inadmissible, dissenting from Chief Justice Aamer Farooq. “The judges who dissented were pressured by the ISI through their families and friends,” it says.

The letter further states that following the decision in the Tyrian White case, the two judges who made the decision requested additional security at their residences due to increased pressure from the ISI. One judge had to be hospitalized due to high blood pressure caused by stress, it said. This matter was also presented to the Chief Justice of the Islamabad High Court and to the then Chief Justice of Pakistan, Umar Ata Bandial, on May 2, 2023, the letter said.

The Letter by Six IHC Judges

1. We 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.

2. This matter has arisen in the aftermath of judgment dated 22.03.2024 rendered by the Supreme Court in the matter of Shaukat Aziz Siddiqui vs. Federation of Pakistan (C.P. No. 76 of 2018), in which it has been declared that Justice Siddiqui, who was the senior puisne judge of Islamabad High Court (“IHC”), was wrongfully removed on the basis of a report of the Supreme Judicial Council (“SJC”) dated 11.10.2018, and would be deemed to have retired as a judge of the IC. Justice Siddiqui had been removed after he had publicly alleged that operatives of the Inter-Services Intelligence (“ISI”), led by Major General Faiz Hameed (DG-C of ISI), were determining the constitution of benches at IC and interfering with proceedings of the Accountability Court Islamabad.

3. The Chief of Army Staff and the Federal Government had filed complaints against Justice Siddiqui, in addition to the Registrar Supreme Court bringing the allegations made by Justice Siddiqui to the attention of the then Chief Justice of Pakistan. The Supreme Court in the aforementioned judgment has held that a judge cannot be removed without an inquiry being conducted by the SJC into allegations of misconduct against the judge and the SJC may only adjudge allegations of misconduct in accordance with the Code of Conduct issued by it and not on the basis of “unspecified, arbitrary and vague notions of what constitutes appropriate traits and patterns of behavior of a judge…” It has been declared that the actions taken against Justice Siddiqui “constituted mala fide and SJC had acted corum non judice”.

4. While the declaration issued by the SC has vindicated Justice Siddiqui to an extent, his unceremonious removal from office can understandably not be recompensed many years after his removal. Further, whether operatives of ISI, led by DG-C at the time, were in fact interfering with functioning of the IC and the Accountability Court at the time has been left open. And if they were so interfering, how are those who undermined the independence of the judiciary and those who aided and abetted such interference are to be held accountable to prevent and deter a repeat of such conduct. After the SC’s judgment, Justice Siddiqui has reiterated his demand in media interviews that allegations of interference by ISI operatives aimed at engineering the outcome of judicial proceedings be investigated.

5. We support Justice Siddiqui’s request to investigate the allegations made by him and request that the scope of such investigation be expanded to determine whether such interference in relation to the administrative functions of IC (including composition of benches and marking of cases) and judicial proceedings of the courts that IC supervises are still continuing and whether judges of High Courts and District/Special Courts are discharging functions under explicit and/or veiled threats of coercion by intelligence agencies. We will also note that the Code of Conduct for Judges prescribed by SJC provides no guidance on how judges must react to and/or report incidents that are tantamount to intimidation and interfere with judicial independence.

6. We believe it is imperative to inquire into and determine whether there exists a continuing policy on the 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:

a. There emerged a difference of opinion between members of the bench hearing the case titled Muhammad Sajid 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 to 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 regarding 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 the part of intelligence operatives, however, continued.

b. 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 SJC, accompanied by an orchestrated media campaign to bring pressure to bear upon the judge to resign.

c. 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 IC 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 IC 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.

On 10.05.2023, the judges of the IHC sent a letter to Chief Justice IHC recording incidents 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. No proceedings were, however, initiated. A copy of the letter is attached as Annex-A.

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 IHC who were in attendance in the office on that date (Chief Justice IHC was in Lahore and one judge was undergoing 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 IC 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 Mr. Justice Qazi Faez Isa, the then Senior Puisne Judge, on the same day to bring the matter to his attention as well.

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 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 IC to confirm their content. The matter was brought to the attention of Chief Justice HIC. 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.

g. Five judges of IHC wrote a letter to Chief Justice IHC on 12.02.2024, mentioning accounts heard by us regarding 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 the 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. While the full-court meeting is yet to be convened, a copy of the letter is attached as Annex-B.

7. The 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 a 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.

8. 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 favor. It is in the public interest in the ability of the judiciary to dispense justice to every litigant without being influenced by extraneous considerations that such an oath is meant to protect. While declaratory relief can correct a wrong as a historical matter, there is a need to ensure that the 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.

9. The Code of Conduct for judges, as prescribed by the SCJ, 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 the discharge of their functions or if the judiciary as an institution can and will take steps to ensure that individual judges aren’t 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 disliked by the executive branch.

10. 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 the independence of the judiciary is a salient feature of the Constitution meant to uphold fundamental rights and dispense justice in accordance with the law in the public interest, there is a need for an institutional response to uphold and protect the independence of the judiciary.

1. 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 the independence of the judiciary. Such a 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 in considering how best to protect the 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.