Why the IHC judges’ allegations of executive overreach should concern us all

I start with a simple premise that seems to have been forgotten during the intellectual gymnastics at play — judges should always be independent.

Our legal canon has led to the sacrifice of many trees to fill law books with pages exalting the independence of the judiciary, for independent judges are impartial, and impartial judges promote justice. Ergo: impartiality must always be safeguarded.

An incentive that undergirds such impartiality is a judge’s desire to avoid harsh consequences for the decisions they render. Threatening a judge with coercive measures may compel them to decide a particular case a particular way. If we accept the absurdly-simple premise I started with, such pressure is, obviously, undesirable for society, meriting an immediate response to curb the menace.

Not so simple

This is a simple enough notion, until it’s not, as shown by the polemics on the six Islamabad High Court Justices’ alarming description of interference in their judicial functions — allegations that should perturb every citizen, but which are being tactfully dismissed by framing the debate around the timing of the reveal. “Why now?” critics ask, when confronted with the shocking material in the Justices’ letter to the SJC. “Where was this courage when Justice Shaukat Siddiqui was targeted?” they ask, equally rhetorically, in response to praise meted to the Justices, for the latter’s attempt to stand by their oaths.

Those who read diligently, and enjoy craniums free of tinfoil hats, need only peruse paragraph six of the Justices’ letter to observe that their contentions did not originate overnight. It appears that, by May 3, 2023, both the Chief Justice of the Islamabad High Court and the Chief Justice of Pakistan had been apprised of the Justices’ objections.

The letter details follow-up meetings. Nothing came of them, until the apex court took cognisance of the matter (more on this later).

Those deriding the Justices for not taking a stand for Justice Siddiqui, perhaps conveniently, ignore the fact that five of the six judges were not even on the bench in 2018. Information available on the subject does not show that any of the six opposed Justice Siddiqui’s cause, so any apathy to Justice Siddiqui’s plight cannot be inferred.

The situation, today, is materially different — five of these six Justices are no longer private persons, but constitutional office-holders, tasked with dispensing justice. This captures how the debate on timing only obfuscates the thornier issue — do we displace our preference for judicial impartiality, if we accept the premise that the Justices were not active enough in condemning what came before? Would one’s perception of the adequacy of their earlier response be the metric for determining whether the Justices may seek insulation from intimidation?

Surely not. We want judges to only be guided by their conscience and intellect when they issue verdicts. Therefore, an attack on their independence should elicit consternation, and not cynicism.

Plenty of reasons have been provided for the former, all rooted in the Justices’ inability to, individually, counter the invasion of their privacy or the torture of their loved ones. The law on contempt does not permit the Justices to initiate contempt proceedings where they are parties to the dispute; the law only permits the Justices to “refer” the matter to the chief justice, and this referral, by the Justices, did not bear fruit.

The code of conduct too does not prescribe a mechanism for reporting the executive’s meddling in the Justices’ sphere of operation.

Pen in a sword fight

When Justice Siddiqui spoke out, the SJC found him guilty of misconduct for breaching the same code; his six-year legal battle culminated only in “benefits and privileges of a retired Judge”. Justice Siddiqui’s exoneration did, however, demonstrate the extent of executive intrusion in the judiciary’s affairs, reaching the point where a nation-wide reckoning within the institution is necessary to formulate a coherent push-back strategy.

Armed only with the pen in a sword-fight with the executive, the Justices, recognising their limitations, now seek such “institutional consultation” among their brethren.

Justice Tassaduq Hussain Jillani agreed with this approach, opting to recuse himself from the prime minister’s one-man inquiry commission; safeguarding his legacy in the process, he posits that the matter is best left to the SJC or the Supreme Court.

With the one-man inquiry commission having lost its only man, the committee constituted under Section 3 of the Supreme Court (Practice and Procedure) Act, 2023, ended up agreeing with Justice Jillani. Out came the notification that the Supreme Court is taking suo motu notice of the matter, leading to the first hearing on Wednesday, April 3.

The high courts’ inability to immunise against executive overreach, naturally, trickles down to the lower courts, where judges are more susceptible than their high court counterparts. This vulnerability affects litigants throughout the system, which should concern us.

Impressive though the Justices’ crusade to uphold their oath has been, being forced to fight this fight at all should concern us. And the fact that — even when truth is being spoken to power — some of us have conveniently forgotten first principles, regardless of how intuitive these principles may be, should concern us.

Some of these concerns appear to have registered with the Supreme Court. Wednesday’s hearing contained multiple references to the “independence of the judiciary” and the need to determine “the way forward”, for which a full bench of the court may hear the rest of the case.

During the hearing, the CJP poignantly remarked that the proceedings would prompt listeners to open law books and read them carefully enough. Solely dusting off the treatises, however, may not be enough; as plenty quote, “justice must not only be done, but should also be seen to be done”.

Header image created with AI