IHC judges' letter: Justice Yahya Afridi recuses himself from suo motu case

• Judge says matters raised in letter should be viewed as per SJC code of conduct.
• "High Courts are independent courts under Constitution," he writes.
• Justice Minallah says he "can't agree" with graphs 1-12 of written order.
  

ISLAMABAD: Justice Yahya Afridi has recused himself from the suo motu case taken up by the Supreme Court in the wake of letter written by Islamabad High Court (IHC) judges citing complaints of interference in judicial affairs by intelligence agencies.

Justice Afridi, who was part of the seven-member bench hearing the case, mentioned his recusal in a note with the written order issued following the first hearing.

Citing his reason for the recusal, the judge maintained that the matters raised in the IHC judges' letter should be viewed in accordance with the Supreme Judicial Council's code of conduct.

"High Courts are independent courts under the Constitution. Article 184/3 should not be invoked on independence of high courts," Justice Yahya maintained.

The seven-member bench conducting the hearing of suo motu case is headed by Chief Justice Qazi Faez Isa and comprised six other judges — Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Jamal Khan Mandokhel, Justice Athar Minallah, Justice Musarrat Hilali and Justice Naeem Akhtar Afghan.

During the first hearing of the matter on April 3, the country's top judge said the SC will not tolerate any interference in judicial affairs and is taking the letter by Islamabad High Court judges “very seriously”.

Justice Yahya, 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.

Meanwhile, SC's Justice Athar Minallah also included an additional note which mentioned that he "could not convince himself" to agree with paragraphs one to 12 of the written order.

In his note, the apex court's judge maintained that "interference" in cases with political implications cannot be ruled out.

The judge added that the court itself has accepted the same in the Zulfiqar Ali Bhutto reference, while the Asghar Khan case is also enough to see the extent of the interference.

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.

The order

Meanwhile, the bench — in the written order of the hearing — has issued notices to the Attorney General for Pakistan Mansoor Usman Awan, Pakistan Bar Council and the SC Bar seeking suggestions regarding the judiciary's response on the matter as an institution.

The bench's order read that CJP Isa and senior puisne judge Justice Syed Mansoor Ali Shah met Prime Minister Shehbaz Sharif after a full court meeting and consultation with high court judges.

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 premier was also held considering the issue's gravity.

The order mentioned that the law minister, as per the AGP, visited former top judge Justice (retd) Tasadduq Jilani's house and met him. The former chief justice was provided with the proposed terms of reference (TORs) of the inquiry commission.

Unfortunately, a malicious campaign was launched against the ex-CJP on social media, it added.

Only the secretary of the concerned department can be summoned through a judicial order, the order read, adding that it was stated during the hearing that the prime minister and federal ministers have an exception under Article 248.

According to Article 248, the premier and law minister cannot be summoned. Therefore, an exception was referred to the prime minister in the full court meeting.

The order also included the AGP's arguments from the hearing, according to which the judges' letter did not mention any incident during the tenure of CJP Isa.

Suo motu notice

The SC, on April 1, took suo motu notice of the matter after around 300 lawyers, belonging to various bar associations across the country, signed a petition demanding CJP Isa to exercise the apex court's suo motu jurisdiction under Article 184(3) of the Constitution on the letter.

The lawyers also rejected the formation of an inquiry commission led by former chief justice of Pakistan Justice Tassaduq Hussain Jilani to probe the allegations.

It was learnt that the chief justice had referred the matter to a judges’ committee — comprising himself and three senior most judges of the apex court under the Supreme Court (Practice and Procedure) Act 2023 — for deliberation and constitution of a bench for hearing the matter.

The committee later decided to exercise suo motu jurisdiction under Article 184(3) of the Constitution and fix the matter for hearing on April 3.

Letter by IHC judges

On March 25, six judges of Islamabad High Court (IHC) had demanded Chief Justice of Pakistan Justice Qazi Faez Isa to convene the Judicial Convention to consider the matter of interference of intelligence operatives in the judicial functions or intimidation of judges in a manner that undermined independence of the judiciary.

The IHC judges, including Justice Mohsin Akhtar Kayani, Justice Babar Sattar, Justice Arbab Muhammad Tahir, Justice Tariq Mahmood Jehangiri, Justice Sardar Ejaz Ishaq Khan and Justice Saman Rifat Imtiaz, wrote a letter to the chief justice, who is also the chairman of the Supreme Judicial Council (SJC).

After the letter went viral and considering the gravity of allegations it mentioned, the chief justice called a meeting the same day with the IHC chief justice and all the judges after Iftar at 8pm at his residence during which the concerns of all the judges were heard individually.

The following day, on March 27, the CJP met with the attorney-general and the law minister, and thereafter, the chief justice and the senior puisne judge met with the president of Supreme Court Bar Association (SCBA) and the senior most member of the Pakistan Bar Council in Islamabad.

A full-court meeting of all the SC judges, called under the chairmanship of the chief justice of Pakistan at 4pm the same day, deliberated on the issues raised in the letter.

The full-court developed a consensus by majority that the chief justice may hold a meeting with the prime minister of and raise the issue with him. CJP Isa then met with Prime Minister Shahbaz Sharif in the Supreme Court where he clearly stated that interference by the executive in the affairs and judicial workings of judges will not be tolerated.

During the meeting, constitution of an inquiry commission was proposed under the Pakistan Commissions of Inquiry Act, 2017. The prime minister fully endorsed the views expressed by the CJP and senior puisne judge and assured them that he will be taking other appropriate measures to ensure an independent judiciary.

After further consultations among the CJP and other judges as well as the federal government's actions in this regard, the announcement of a one-man inquiry commission comprising former CJP Tassaduq Hussain Jillani was made, who recused himself from the opportunity, citing various constitutional reasons.