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Beyond Interference: Redefining the Scope of Judicial Protection”

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Islamabad (Imran Y. CHOUDHRY) :- Former Press Secretary to the President, Former Press Minister to the Embassy of Pakistan to France, Former MD, SRBC Mr. Qamar Bashir analysis :
Chief Justice Qazi Faez Esa, nearing the end of his tenure, chose not to address the complaint filed by six serving judges through the Supreme Judicial Council or by convening a full court of the Supreme Court. Instead, he passed it onto the civilian government, which many perceive as being under the complete influence of the powerful establishment. This decision has been viewed as a missed opportunity to restore judicial independence from the alleged overwhelming control exerted by the establishment, which is often equated with the state itself. This control extends to all facets of governance, including the parliament, governments, cabinets, electoral processes, judicial proceedings, and foreign policy decisions, as well as the management of trade, business, investment, agriculture, and livestock.

The Chief Justice’s decision to avoid addressing the complaint prompted over 300 members of the legal fraternity to stage a protest before the Supreme Court today (31.03.2024), urging the Court to take responsibility for adjudicating the matter under Article 184(3) of the Constitution. They argued that any government-led commission would lack the necessary independence and authority to properly investigate the claims.

Analysts, jurists, and lawyers have widely criticized the appointment of Tassaduq Hussain Jillani, who served as the 21st Chief Justice of Pakistan from 2013 to 2014, to head the one-man commission tasked with adjudicating the complaint of six judges. Many have deemed this appointment highly inadequate, inappropriate, and out of context, given Jillani’s age—barely two years younger than Pakistan itself. They argue that since the complaint directly implicates the executive branch as the culprit, appointing a commission headed by someone associated with the executive undermines the integrity of the process. It’s seen as illogical and unfitting for the accused to be tasked with providing justice to the complainants.

Meanwhile, the PTI, emerging as one of the largest stakeholders, has been particularly affected by judicial decisions allegedly manipulated by the establishment. These decisions have targeted the incarceration of PTI’s former chairman and top-tier leadership, resulting in significant upheaval within the party. PTI has not only lost its founding chairman, top and second-tier leadership, but also its iconic symbol and brand name. Currently, it has been absorbed into an irrelevant and sectarian party, Sunni Itehad, thereby alienating sympathizers from other sects. The heavy toll this has taken on PTI appears irreversible at this juncture.

The terms of reference assigned to the commission are notable for their focus on investigating direct involvement of officials in judicial interference and recommending appropriate action against implicated agencies, departments, or state institutions based on evidence uncovered. However, the absence of mention regarding indirect involvement suggests a potential gap in the scope of the inquiry. Additionally, the commission’s starting assumption that no interference has occurred places the burden of proof on the six judges, who must substantiate their claims comprehensively with evidence, witnesses, and circumstantial evidence. Failure to do so could lead to the judges facing accusations of lodging false or concocted complaints, adding a significant layer of complexity to the proceedings. Moreover, granting the commission the authority to explore additional matters deemed totally inappropriate.

The analyst and jurists believe that the TORs assigned to the commission lack specificity and urgency in addressing the issue of unlawful interference. While they include provisions for investigating interference and recommending action, they may not adequately address the need for proactive measures to prevent future interference or hold accountable those responsible. Additionally, the assigned TORs may not fully acknowledge the complexity of the issue or provide clear guidance on how to address challenges such as fixing responsibility in the absence of concrete evidence.

Rejecting the Terms of Reference (TORs), analysts and jurists argue the letter written by the six judges transcends mere complaints or allegations. Instead, it resembles a decision by a six-member high court bench. After conducting investigations, gathering facts, and recording witness testimonies, the bench unequivocally declared the unlawful elements within the country’s prime spying agency and the establishment guilty of blatant and brute interference in judicial matters.

The bench highlighted that the unlawful elements within the establishment use coercive tactics, including intimidation, blackmail, and eavesdropping, to influence bench formations and court decisions aligning with their political and administrative agendas. Furthermore, by openly defying or frustrating court orders that contradict their objectives, the unlawful elements within the establishment undermines the judiciary’s independence. The bench sought guidance from the Supreme Judicial Council on defensive measures to safeguard against such unlawful interference and ensure the judiciary’s autonomy to dispense justice impartially and transparently.

Analysts and jurists criticize the use of the phrase “interference of the executive”. They argue that the type of interference faced by the judiciary transcends constitutional boundaries and legal frameworks. Rather than being categorized as executive interference, it should be characterized as unlawful coercion perpetrated by rogue elements within state institutions. These elements employ illicit means to manipulate and intimidate the judiciary, undermining its independence and impartiality therefore cannot be legally termed as executive. As such, they should not be regarded as lawful actors but as unlawful elements seeking to subvert the rule of law through coercion and intimidation tactics.

Henceforth, the Terms of Reference (TORs) for the Commission should reflect a proactive approach, beginning with the acknowledgment that unlawful interference with the judiciary has already been substantiated. The Commission should then focus on recommending measures to safeguard the judiciary from undue, unlawful, and blatant interference perpetrated by rogue elements within state security institutions.

Secondly, the Commission should provide practical and actionable recommendations regarding how the lower and higher judiciary can respond effectively to such unlawful interference. These recommendations should empower the judiciary to maintain its independence and integrity in the face of external pressures.

Thirdly, the Commission must address the challenge of fixing responsibility on unlawful elements within the state security apparatus, even in the absence of concrete evidence and witnesses. Given the sophisticated techniques employed by these elements to conceal their activities, the Commission should explore innovative strategies for holding them accountable.

Fourthly, the Commission should propose the enactment of new legislation and regulations aimed at establishing dedicated security forces tasked with protecting the lower and higher judiciary from unlawful interference, whether originating from within state institutions or external non-state actors.

Lastly, the Commission should recommend mechanisms to ensure the implementation of court decisions and prevent their violation or frustration through selective administrative, legal, or illegal means. These measures should reinforce the rule of law and uphold the authority of judicial decisions in the face of external pressures.

The proposed Terms of Reference (TORs) present a comprehensive and proactive approach to addressing the issue of unlawful interference with the judiciary. They prioritize acknowledging the existing problem and recommending concrete measures to safeguard judicial independence and integrity. By focusing on empowering the judiciary to respond effectively, holding accountable those responsible for interference, and proposing legislative reforms, the proposed TORs offer a robust framework for addressing the challenges at hand.

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