The abject surrender of Pakistan’s top court

On March 26, a letter written by six judges of the Islamabad High Court to the Supreme Judicial Council surfaced. In it, the judges courageously brought on record the kinds of threats, coercion, and blackmail they have faced in performing their functions. But almost everything that the leadership of the Supreme Court has done since receiving that letter has been spectacularly wrong.

First, the method. For a court leadership that has been an aggressive proponent of transparency and openness (think live streaming), this was a remarkable moment to choose to go private. A full court meeting behind closed doors, followed by a meeting with the Prime Minister behind closed doors, followed by another full court meeting behind closed doors.

We did of course receive an after-the-fact press release. According to the press release, we are told that the Chief Justice of Pakistan (CJP) clearly told the PM that interference by the Executive in the working of the judges would not be tolerated and independence of the judiciary would not be compromised. It would have been far more effective if the Chief Justice had said this to the Prime Minister in open court, for us all to see, after issuing him notice, from his seat in Court Room 1 as the head of the state’s judicial organ, and not as a supplicant who first sought an audience and then met him three-on-three in a private meeting. The former is an institutional response, the latter smacks of an institutional surrender.

For a court leadership that has been an aggressive proponent of transparency and openness (think live streaming), this was a remarkable moment to choose to go private. 

- Sameer Khosa

Second, the solution. The Chief Justice and Prime Minister agreed on a proposal (we are not told who made the proposal) that a retired judge would head a commission of inquiry, the Terms of Reference of which would be decided by the government to look at the letter. For lack of a better term, that is a shocking solution for many reasons.

For one, if the judges of the Islamabad High Court had wanted the government to investigate the matter they would have addressed their letter to the government, not to the Supreme Judicial Council. This solution is simply a passing of the buck when it should in fact stop with the judicial leadership. 

Secondly, the matters contained in the letter are a series of events involving the Executive. The Prime Minister heads that organ. Indeed, he was the premier for the better part of the period when the incidents mentioned took place. So essentially, the executive has been asked to investigate itself. 

Thirdly, any response that the inquiry would be led by a retired judge and not the Executive itself is poorly considered. Here are six judges, with all their insulation from the Executive and protection of their current office, saying that none of that is sufficient to protect their privacy and safety. What is the hope that the Commission of Inquiry, appointed by the Executive, a retired judge with no protection (except that which is provided by the Executive), compensated by the Executive, acting without any institutional support, will be free from pressure, extortion, or blackmail? 

Fourthly, a commission of inquiry that presents a report eventually is no substitute for the transparency that would have accompanied open court proceedings, with replies submitted in court, and the scrutiny of the public along with the court.

Then of course, there is the stark lack of action. The Supreme Judicial Council has been an active body this entire year. It is inconceivable that the information laid before the Council in the letter by the judges does not constitute “information” laid before the Council for the purposes of Article 209 of the Constitution. Yet, the Supreme Court press release is silent on whether the Council has initiated any inquiry against the Chief Justice of the Islamabad High Court.

The fact is that the letter written by the judges of the IHC presented a golden opportunity for the Supreme Court. The Supreme Judicial Council could have commenced an inquiry against the judge whose conduct is brought into question by his peers. There was nothing stopping the acceptance of the request of the judges to call a judicial convention to gather testimony about interference in judicial work. Based on the findings of the convention, the Court could have initiated suo motu proceedings in open court. If at all, the PM had to be spoken to, he could have been summoned to court, instead of met privately.

One wonders why instead of asserting the independence of the judiciary, the leadership of the Court has surrendered it. It is all very well to write letters from the rafters when others are at the helm. But when the moment presents itself, it is as someone once said: “If you can’t stand the heat, don’t be in the kitchen.”

The writer is a senior lawyer.