Justice ( R ) Syed Manzoor Gilani
After justice (r) Shoukat siddique of Islamabad High Court’s unequivocal allegation against a general , acting on spook duty , of meddling and interfering in his judicial affairs in 2018 , six judges of the same court made a complaint in writing six years thereafter , addressed to chief justice of Pakistan and members of supreme judicial council besides other judges with similar , rather more volatile allegations pressurising them in performance of their duties and in at least one case in his personal life , so much so to the extent of his bed room besides intimidating their siblings , is worrying for several reasons . Besides others , firstly for the reason that , it is misconduct on the part of relevant persons of agency / their command to resort to these nefarious activities in a democratic dispensation . Secondly, the judges themselves faulted in not taking action forthwith against them or reporting to their command for action . Thirdly complaining to supreme judicial council , who is not competent authority against these agencies and , fourthly, the least they failed to do was to to submit the case/ cases in which interference is alleged back to chief justice for appropriate action by stating relevant reasons with a copy of order to command of relevant authority. Nevertheless out burst of judges of the capital territory manifests the magnitude of gravity of the situation , that too when it is brought to notice of apex court , notwithstanding whatever capacity and to the public at large . Hon’ble chief justice pakistan equally faulted in agreeing to constitute a commission of inquiry as the matter related to the judicial branch of the state , not exective , touching the independence of judiciary and violating the constitutional trichotomy of powers besides , every fundamental right of every citizen . It was a case of public importance touching the very foundation of constitution, allegedly an assault by executive agency on judiciary . It warranted exercising Suo motto action under article 184(3) of constitution of Pakistan which was ultimately done but after a lot of spoil . Government equally faulted in not constituting a parliamentary committee , to assert the supremacy and oversight of parliament , instead , letting the matter to institutional clash by appointing a commission of inquiry , whose report is never made public and never acted upon . Credit goes to Tasadiq jeelani , former chief justice of Pakistan to decline accepting the chair of commission of enquiry which lead CJP to take up the matter suo motto under article 184(3) being left with no option . How could the sitting judges of high court ( or for that matter Generals whose agents are blamed ) to be called to appear before a retired judge / chief justice , appointed by executive under commission of enquiry Act , given the Pakistani political style of governance, ? Pressure always looms upon a judge of constitutional court while hearing cases of public importance. It is pressure of conscience , pressure of public opinion, societal and environmental pressure . Some times morally , ethically or psychologically weak judges leak or bend under visible and invisible pressure of administration , which includes secret agencies , political and executive pressure . Validating Marshall law is a classical example of Pakistan judiciary . while Indian judiciary leaked under societal and environmental pressure when it comes to communal matters . Classical examples are Ayodya Babri masjid matter or any matter relating to kashmir vis a vis rest of India such as reasoning of upholding death sentence against Afzal Gurus for the reason “ to satisfy the collective conscience of the nation” or scrapping special status of Kashmir without minding similar status to various other Indian states . Establishment in context of Pakistan or India in my view is every group of persons or society who affect the decision making in the society Such as , Army and its branches at the top , politicians, bureaucracy/ Administration, Jaggerdars , religious fundamentalists and judiciary itself . Some times they act in tandem . Nawaz sharif and his party workers vandalising Supreme Court On 30 November 1997 forcing Chief Justice Sajjad Ali Shah to remove the finding of contempt against Nawas sharif in Pakistan , and, Indra Ghand’s constitution of special task force of CID in June 1975 to raid the house of Manna Lal secretary of justice Sinha of Allahabad High court to know the contents of judgement in an election matter against her , who escaped to seek shelter at Justice Sinha’s residence till the verdict unseating Indra Ghandi was announced. These are Classical examples of political vandalism on judiciary. Similarly appointment of justice Ray, a judge as chief justice of India , junior to three judges of Supreme Court in 1975 , by Indra Ghandhi and , similar action by Benazeer Bhutto by appointing justice Sajjad Ali shah , junior to two judges of Supreme Court as chief justice in 1994 and this writer , senior by seven years to a judge appointed as chief justice by Gen Musharaff in 2006, are classical examples of administrative vandalism on judiciary in Pakistan. Pakistan’s judiciary has always remained a principal target of all military dictators ( and their offshoots )after toppling civilian governments by forcing the judges to take oath under military enforced rules called PCO , multiple times . Worst had been the command that those who are not called to take oath or refuse to take oath shall cease to be judges . That way Pakistan judiciary has a long history of interference which seems Pakistan has a history of military coup’s and then governing the country , including all its political institutions through agencies . Interference seems institutionalised . We vividly saw in 2018 elections the retired army generals and their sitting cronies (along with judiciary ) actively com-paining to bring Imran khan to power as was allegedly done for Ayob khan . 2024 election witnessed participation of PTI being badly frustrated , particularly after their attacks on military installations on 5th May , 2023 when interests clashed Internal and external defence and security , interests of a state are a converged duty and prerogative of home, military and foreign affairs establishment . These are executive and administrative affairs of Government . There are no definite lines of their operation , except “ in the interest of security of state “, a vague term absolutely monopolised by security apparatus around the world while Judicial dispensation has nothing to do with defence and security affairs. Its parameters are settled by legal rules, procedures and precedents , hence there is no reason for security agencies to cross the red line or wish the courts to line up with them in interpretation of laws . They fault to comprehend this difference and tread in innocently or mischievously. Here they cross the red line , while there are ways to avoid it . I remember at least two cases where as judge in the high court I passed adverse remarks against a field intelligence agency in refusing to accept the court notice in a habeas corpus petition and sent a copy of order to chief of defence staff or head of military intelligence. He ensured its compliance on the next date when a high rank officer appeared with the file of interrogation of the relevant detinue . Doing justice is a witty job one should never miss , instead of complaining after event . Pakistani courts have a played contributory role by validating the martial laws and facilitating regime changes by misuse of their judicial authority . In nearest past , Saqib Nisar and Bandial era of chiefship of Pakistan Supreme Court are a classical example of facilitating the Agenda of state agencies , thus encouraging them to intervene . I have served in a politically and constitutionally most fragile political region of Pakistan which is still not constitutional part, but settled with Pakistan , as a judge in the high court and Supreme Court of AJK for around twenty year. Heard and decided most touchy cases but have never been intercepted or intervened to favour the agencies by any body perhaps they understood that I never cross the red line , instead , resorted to procedures compelling them to abide . However I did feel their perturbedness . I remember many but refer a few cases where the agencies were extremely interested otherwise but had to cooperate wily nilly . Shoukat Kashmiri a nationalist from Rawalakot was apprehended by an agency in broad day light in the presence of dozens of residents but denied to have been in their custody when a habeas corpus petition was being heard though there were couple of affidavits stating name and position of spooks who apprehended him . I ordered inspector general police to hold personally an investigation. One fine morning detinue himself appeared in court with application and affidavit that he was thrown somewhere in Dera ismail khan or Dera Gazikhan in Pakistan . He requested for action against the agency . I declined any action as I was concerned with his production in court under a writ of habeas corpus rest warranted administrative action before the relevant authorities . A military contractor was apprehended by an agency in Neelum valley but his detention was denied on petition in the court . A miscellaneous application was filed in court alleging that detune is severely tortured and is admitted in a Local CMH . I appointed session judge Muzaffarabad to visit CMH and report . Perhaps advocate general appeared in the court and admitted his admission in CMH on account of heart attack who succumbed there . I ordered his post mortem but his heirs refused , instead stated not to press the petition and requested for his dead body . I was shocked but adopted restraint to proceed further . I was later told that his heirs had been sufficiently compensated monetarily . After 1990 intifada movement in IHK , thousands of state subjects crossed LOC to take refuge in AJK . Some Kashmiri families on Indian passports visiting Pakistan also took refuge in AJK . They were sufficiently taken care of . Some affluent qualified people from the lot applied for national identity cards and local state subject certificate for jobs in rest of the country and abroad but were refused by administration . Families on visit visa were ordered to leave AJK . Multiple writ petitions were filed against the administrative orders . Ministry home of Government of Pakistan (means central agencies ) along with local administration fiercely opposed the move . The plea of the petitioners was accepted stricking down the home ministry orders of their repatriation for being bona fide state subjects and entitled to settle any where in AJK which is a part of state of J&K by directing to issue them requisite documents of identity , travel etc after satisfying about genuineness of their claim as state subjects and antecedents . All aspirants were later granted CNIC , state subject certificates, passports , entered as voters and given special quota in educational institutions and service . I remember an old man from far off Neelum valley craving for stay order against construction of a defence road running through and damaging his three kanal land . An army officer from FWO appeared in the court on the day fixed for hearing vehemently objected to stay for being against national and security interests of country and many more objections . I told him exploiting his sentiments that “ this old man’s country and national interest is his house and three kanal land , if he loses it , he loses his country, give him compensation for the land and house , I will vacate the stay.” That gentleman sought a fortnight time and came with cheque of compensation for payment which was in process before land acquisition collector . The old man was satisfied . I served the officer with a cup of tea in my chamber . This is how you have to handle these people without hurting their ego and esteem and without letting the aggrieved go without relief . This is the red line . I had to face very tough time with all agencies and governments at Islamabad and and Muzaffarabad in 2006 when a judge junior to me by six years was appointed as chief justice of AJK Supreme Court by General Musharaff’s regime as a reward to manipulate election . The judge was to hold esteemed office for around nine years , while I was to retire within next four years . I decided to stay in the slot rather to give in for various reasons to uphold the dignity of institution. The action was resisted by legal fraternity throughout AJK and Pakistan. It later on coincided with reference filed by GOP against justice Iftikhar Muhammad choudhri CJP which ultimately lead to resignation of Gen Pervaiz Musharf . I filed a petition in supreme court of Pakistan against advice for appointment by prime minister of Pakistan of a junior judge as chief justice . It heated up debate in the country and abroad which brought administration to knees. All and sundry including spy agencies started a campaign to harass and pressurise me and my siblings in service to withdraw the petition from Supreme Court of Pakistan . My security guards were withdrawn . Chief justice did not mark me any case for hearing . No government officer talked or contacted me , on the top , my colleagues and staff turned volte face .The matter later ended when a reference for misconduct was filed against the incumbent chief justice who was suspended and I was appointed as acting chief justice . Institutions of the country and their cronies must be trained and tuned to learn to draw the red lines of their operation in asserting and exercising their authority . They are all meant to serve and protect the state and its interests , not vice versa .
