Justice (retd) Syed Manzoor Gillani*
After Justice (retd) Shoukat Siddique bluntly accused a high-ranking military official in Pakistan of improperly influencing his judicial duties in 2018, a serious situation had developed in the Islamabad High Court.
Six years later, six judges of the same court have filed written complaints with the Chief Justice of Pakistan and the members of the Supreme Judicial Council (SJC), exacerbating the crisis and reigniting the debate.
Echoing and amplifying Siddique’s concerns, these complaints allege intense pressure on their professional duties and, in one case, an egregious intrusion into a judge’s private life, worryingly reaching into his private residence and intimidating his family members. This scenario is a cause for serious concern in several respects.
Firstly, such actions by state agencies or their employees aimed at coercing the judiciary or interfering in its proceedings blatantly violate the norms of a democratic society. Secondly, the judges themselves are not blameless for delaying their response to these abuses instead of taking immediate remedial action.
Moreover, their decision to refer these complaints to the SJC – a body ill-suited to handling complaints against intelligence agencies – is a strategic misstep. The failure to refer the cases in question to the Chief Justice for appropriate adjudication also represents a missed opportunity to uphold the integrity of the judiciary.
The collective outcry of these members of the judiciary not only emphasises the gravity of the situation but also brings it to the attention of the highest judicial authority and the public. However, the decision of the Chief Justice of Pakistan to appoint a commission of enquiry instead of directly dealing with these matters within the judiciary undermines the principle of judicial independence and constitutional separation of powers, thereby compromising the fundamental rights of citizens.
This controversy should have called for immediate intervention under Article 184(3) of the Constitution of Pakistan given its profound impact on the fundamental principles of governance. Unfortunately, the government’s refusal to constitute a parliamentary committee to oversee and enforce legislative supremacy has further aggravated the situation and led to an unnecessary institutional deadlock.
Former Chief Justice Tasadiq Jeelani deserves praise for his principled refusal to chair the commission of enquiry, forcing the Chief Justice to take the necessary action suo moto. However, the idea of summoning active judges or military personnel before a commission poses a complex and conflictual problem, especially under the prevailing conditions in Pakistan.
Coping with Myriad Pressurised Situations
Judicial decisions, especially in cases of significant public interest, always have to deal with a multitude of influences – be it public opinion, societal expectations or the covert influence of administrative and intelligence agencies. The Pakistani judiciary’s historical acquiescence to martial law, as well as the Indian judiciary’s susceptibility to societal pressure in communal matters, is an example of the challenges to judicial independence across the region.
The manipulation of the judiciary by various elements within the establishment – from the military and political entities to bureaucrats and religious extremists – illustrates the intricate web of influences that affect judicial outcomes. The emergence of legal fraternities as new power blocs in both Pakistan and India, among other developments, is a sign that the autonomy of the judiciary and the integrity of the government are increasingly being challenged.
Instances of overt political interference and manipulation, such as attacks on the Supreme Court of Pakistan and underhand tactics against judges perceived as obstacles, show the lengths to which political actors will go to undermine the authority of the judiciary.
Former Indian Prime Minister Indira Gandhi’s decision to appoint a judge who was subordinate to three judges of the Supreme Court as the Chief Justice of India in 1973 and the attempt to corner Justice Jagmohanlal Sinha of the Allahabad High Court by the CID to get information about the court judgement in the case against her in 1975 are also classic examples of unwarranted interference in the administration of justice in an entrenched Indian democracy.
Former Pakistan Prime Minister Benazir Bhutto’s decision to appoint a junior judge as Chief Justice of Pakistan in 1997 is also a glaring example of obstruction of the administration of justice.
My tenure in the politically sensitive region of Pakistan-administered Jammu and Kashmir as a judge of the Supreme Court and High Court was characterised by staunch resistance to undue interference and underscored the importance of judicial resilience and adherence to procedural integrity.
Through judicious application of law and commitment to justice, I have overcome numerous challenges without succumbing to external pressures, upholding the principles of fairness and judicial independence.
I recall at least two instances where, as a High Court judge, I made adverse remarks against a field intelligence officer for refusing to accept the court order in a habeas corpus petition and sent a copy of the order to the Chief of Defence Staff or the Chief of Military Intelligence. He ensured that this order was complied with at the next hearing when a senior officer appeared with the interrogatory file.
In another case, Shoukat Kashmiri, a nationalist from Rawalakot, was arrested by an authority in broad daylight in the presence of dozens of residents. The authorities denied that he was in their custody when a habeas corpus petition was being heard.
I instructed the Inspector General of Police to personally conduct an investigation. One fine morning, the arrestee himself appeared before the court with an application and an affidavit that he was detained somewhere in Dera Ismail Khan or Dera Ghazi Khan in Pakistan. He sought action against the agency. I opposed any action as I was concerned with his production in court in a habeas corpus action which warranted administrative action before the appropriate authorities.
Similarly, a military contractor was detained by an agency in Neelum Valley, but his detention was denied upon motion in court. A miscellaneous application was filed in court alleging that the detainee had been severely tortured and was hospitalised. I directed the Sessions Judge, Muzaffarabad, to visit the hospital and prepare a report.
Perhaps the Advocate General appeared before the court and admitted that he was hospitalised and died of a heart attack. I ordered an autopsy, but his heirs refused, declaring instead not to pursue the petition and demanding his body. I was shocked but restrained myself from proceeding. I later learnt that his heirs had been adequately compensated financially.
Relief for State Subjects Across LoC
After 1990, when many people from the Kashmir Valley crossed LoC, and took refuge because the region was engulfed by militancy, some people applied for national identity cards and a state subject certificate to get a job. However, they were turned away by the administration.
Families with visiting visas were ordered to leave the Pakistan-administered territory of Kashmir. Several cases were filed against administrative orders. The Pakistani Ministry of Interior had ordered their deportation.
The petitioners’ appeal was upheld and the order of the Ministry of Interior to repatriate them was cancelled as they were bona fide citizens and had the right to settle anywhere as the area was part of the state of Jammu and Kashmir.
All the applicants were later issued national identity cards, citizenship certificates and passports, made eligible voters and given special quotas for educational institutions and civil services.
An old man from the remote Neelum Valley had approached the court seeking an injunction against the construction of a defence road that runs through his three canals of land. An army officer appeared before the court and objected to the stay citing the national and security interests of the country.
I told him that this old man’s land was his country and his national interest was his house and his three kanals land. If he loses it, he will lose his country. I ordered the army to give him compensation for the land and the house and I will vacate the stay. The officer took his time and after a fortnight he came with a cheque for the compensation. I served the officer a cup of tea in my room.
Keeping to Red Lines
This is how you have to deal with the cases without hurting the egos and reputations of authorities and without letting the aggrieved parties get away without relief. All institutions must adhere to red lines while balancing their acts.
I had to deal with all the authorities and governments in Islamabad and Muzaffarabad in 2006 when a judge six years younger than me was appointed Chief Justice of the Supreme Court by General Musharraf’s regime as a reward for his election rigging.
The judge was to hold the esteemed post for about nine years while I was to retire within the next four years. I decided to remain in office for various reasons and not to relent to uphold the dignity of the institution. There was opposition to this move across Pakistan and in Pakistan-administered Kashmir.
After the resignation of General Pervaiz Musharraf, I filed a petition in the Supreme Court of Pakistan against the appointment of a junior judge as Chief Justice.
The experiences and reflections shared in this write-up serve as a solemn reminder of the ongoing challenges to the integrity of the judiciary in the face of state surveillance and intervention.
All state institutions and their employees must recognise and respect the sanctity of judicial proceedings and ensure that the pursuit of state security does not trample on the rights and freedoms essential to a democratic society.
*The author is the former Acting Chief Justice of the Supreme Court of Pakistan Administered Jammu and Kashmir.
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