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Cover Story

Clash of Institutions

The letter written by six judges of Islamabad High Court is poorly drafted and is more of an admission of the judges’ inability or incapacity to use their power and clout to take action against the detractors.

By Justice (R) M. Shaiq Usmani | May 2024

When the news about a letter written by six judges of Islamabad High Court broke in social media earlier in April detailing incidents of attempts by intelligence agencies to pressure the judges to give certain decisions as per the wishes of the powers that be or attempts at eavesdropping through secret cameras, there was a feigned uproar amongst the politicians as well as amongst the various bar associations. It was feigned because while most people in our country would like the judges to be just and impartial when it comes to a decision being made about their personal affairs, they would not shirk from trying to influence the judge in one way or the another to ensure that the decision is in their favour.

This tendency is at its worst amongst the politicians, who, despite their constant harangues about democracy, human rights, and the rule of law, refrain from doing what they preach and, when in power, have no qualms in ensuring that their opponents are harassed and persecuted, resulting in them running to courts for relief. The judiciary is thus dragged into the petty rivalries of the politicians. If it then decides in favour of one party, the other party blames the judiciary for bias or being influenced by bête noire of all political parties, that is, the Security Establishment.

This pattern is a permanent feature of our political scene, but never before has it turned out to be as enigmatic and recriminative till recently, firstly because of the Supreme Court’s decision in Justice Shaukat Siddiqui’s case that confirmed interference by the Establishment in the functioning of the judiciary and secondly because of the rise of the populism coupled with a cult following that emerged after the removal of Imran Khan from power about two years ago.

Coupled with this, the rise in the use of social media, to which now even teenagers have easy access, carried these afflictions of a flawed political system prevalent in our country, even to the homes of the judges. Thus, they, too, got entrapped in its influence and, as a result, invariably developed extreme likes and dislikes with regard to political leaders, not unlike what prevailed amongst the politicians. The security establishment, too, got similarly entrapped and became a player in the so-called Game of Thrones.

There is no doubt that a somewhat milder version of such a phenomenon also prevailed in the past, Justice Qayyum’s affair in the past PML(N) government being an example, but its effect on the judiciary was not so pervasive and remained considerably limited. There is no doubt that even in the earlier days, the powerful politicians and even the security establishment, through its intelligence services, tried to influence the judges, but they did so somewhat discreetly and not so blatantly as now.

Nevertheless, by and large, the judges in the earlier days were comparatively apolitical and, hence, intellectually independent. They knew how to handle any attempt at pressurizing them and took necessary steps to control the situation to preserve their independence. Need it be said that all judges, at one time or another during their careers, have been confronted with such situations, but most could control it unless the attempt to influence emanated from the highest in the land. One must mention Moulvi Tameezuddin Khan’s case, Justice Munir’s judgment, and the execution of Zulfiqar Ali Bhutto, which was recently discussed threadbare in the reference before the Supreme Court.

However, the situation that prevails now amongst the judiciary members is that most judges have an opinion about political matters. Gone are the days when the judges did not even read newspapers for fear of being influenced indirectly, if not directly. As a rule, there is no harm in judges having an opinion about political matters as long as their prejudices do not spill over their judgments. Still, in these days of the widespread influence of social media, the problem with having an opinion about political matters is that it opens the judges to public disavowal or general condemnation in social media, which they find disconcerting and can also lead to retribution by the powerful whose instructions they choose to ignore.


For this reason, the six judges of Islamabad High Court felt the need to write the letter, the contents of which are not as alarming as the social media and the other interested parties, such as politicians and lawyers, have made it out to be. Earlier, such a letter would not have made it to the first page of any leading newspaper. Looking at the letter itself, it is poorly drafted. It is more of an admission of the judges’ inability or incapacity to use their power and clout to take action against the detractors. However, the fact that it was released to social media shows that the motives behind the letter’s writing were more sinister than one can imagine.

By and large, the judges in the earlier days were comparatively apolitical and, hence, intellectually independent.

However, the fault lies not in how such a letter was written but in how various concerned institutions handled it after its release to the media. The letter is essentially addressed to the Supreme Judicial Council (SJC), a permanent body established by the Constitution under Art 209 for the accountability of judges. To ensure that there is no hindrance in the process of accountability, considerably vast powers have been given to SJC by the Constitution through Art 210 to summon anybody in the land and to require any document to be produced before SJC. Besides, to prevent any scandal, turmoil, or crisis, the proceedings of SJC are held on camera.

Given these provisions of the Constitution relating to the functioning of the SJC, the correct course should have been to let the SJC handle the letter without the Supreme Court or Lawyers Association getting involved. It is only if the SJC had rejected the letter that the other parties could get involved, but in the present political scenario where every organization connected with politics is out to undermine everyone else, political parties, particularly those in the Opposition, found it convenient to assert that this is what they have always been saying that is agencies influence the judges to get favourable decisions. The bar associations, which, too, are politicized and ever ready to grab media attention, came up with the demand, much against what they have been all along preaching, that the Supreme Court take suo moto notice of the letter even though by no stretch of imagination did the letter qualify for suo moto notice.

The Supreme Court itself came under pressure. Finding itself incapable of handling the situation in these days of political instability and the constant criticism that it faces from politicians in particular and social media in general, it decided to accede to the request by bar associations and some political parties in opposition for taking suo moto notice. The formation of a full bench to hear the case that was promptly demanded by the political parties was then a natural corollary.

The situation as it stands now is that the SJC to whom the letter was addressed has now been completely sidelined, and what could have been a camera proceeding and hence removed from the public eye would now be emblazoned across TV screens in every home and the proceedings before the Supreme Court will be reduced to being a spectacle and would result in denigrating the judiciary. The Supreme Court is obviously not a trial Court; hence, it will not be able to investigate the issues involved and will not be able to summon specific persons from the Establishment who have been blamed for influencing the Judges, as the Supreme Court can only issue notice to government organizations to appear in response to which a lowly officer from the Ministry would appear whose contribution would be of little consequence. Thus, it will all just end in a whimper, with the judiciary losing whatever clout it has enjoyed hitherto.

If, on the contrary, in the aftermath of the writing of the letter, everyone had remained quiet and let the SJC deliberate on the letter in the normal course, who could then have treated the writing of the letter as misconduct of concerned judges, inasmuch as they failed to preserve the dignity of the judiciary and also blamed government institutions for interference, which they could not possibly prove, launch an inquiry under the provisions of Art 209 of the Constitution. After that, using their unlimited power to summon anyone in the land, including those named in the letter, in person under Art 110 of the Constitution, coupled with the ability to conduct the proceedings in camera, the SJC could have brought the truth to the fore and could have served the Judiciary and the country well.

In so far as the Chief Justice is concerned in his capacity as the head of SJC, he had every right to deal with the letter as proposed above and could have thereby achieved a great deal towards preserving the independence of the judiciary and preventing a clash of Institutions. But by choosing to hear the suo moto case for whatever reasons, he would be lucky if he can conclude the proceedings with any fruitful result and, in fact, may even unwittingly contribute towards letting the judiciary be faced with unprecedented turmoil, which may result in lasting damage to a very important institution of the State.

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