Pakistani Judges accuse the Inter-Services Intelligence (ISI) of interfering in judicial matters
05-04-2024
That the Pakistani military establishment, mainly through its undercover operators in the Inter-Services Intelligence (ISI), has regularly been browbeating, moulding, and directing Pakistan’s judiciary, from the lower rungs to the highest echelons, has been common knowledge among most Pakistanis and Pakistan-watchers for quite some time. What, therefore, was surprising about six senior Pakistani judges last week accusing the country’s powerful spy agency, the ISI, of interfering in judicial matters and using “intimidatory” tactics such as secret surveillance and even abduction and torture of their family members, was that the judges actually mustered enough courage to raise and highlight the sensitive and hazardous matter. How fraught it is for Pakistani institutions to question or take on the military establishment was soon made clear to the judges, when eight from the Islamabad High Court, including Chief Justice Aamer Farooq, on 2 April, received threatening letters that the Pakistani media reported contained a white-powder, suspected to be laced with anthrax. Three judges of the Lahore High Court received similar letters on 3 April, the court Registrar informed. At a time when Pakistan’s grave existential struggles on multiple fronts are leading to considerable concern in the international community, the tussle between the judiciary and the establishment that threatens to break out in the coming days is generating more jitters about the direction and the eventual fate of the country.
In a letter dated 25 March, the six judges of the Islamabad High Court (IHC) urged the Supreme Judicial Council (SJC), which consists of Pakistan’s Chief Justice and four other top judges – two each from the Supreme Court and High Courts – and is the country’s judicial watchdog, to examine and investigate the allegations against officials belonging to the ISI. The judges stressed in the letter that “We believe it is imperative to inquire into and determine whether there exists a continuing policy on part of the executive branch of the state, implemented by intelligence operatives who report to the executive branch, to intimidate judges, under threat of coercion or blackmail, to engineer judicial outcomes in politically consequential matters”. While the ISI and the military establishment have not yet responded to the allegations made in the letter, the Chief Justice of Pakistan Qazi Faez Isa on 3 April deemed it proper and necessary to call the entire panel of 15 Supreme Court judges for a meeting to discuss the letter.
Al Jazeera pointed out on 27 March that the cases of alleged intimidation and coercion by the judges in “politically consequential” cases related to those against the main opposition leader and jailed former Prime Minister Imran Khan and his Pakistan Tehreek-e-Insaf (PTI) party. More than 100 cases against Khan were brought before the Islamabad High Court, with the six signatory judges saying “considerable pressure was brought to bear” on them by the spy agency. The letter says a judge’s brother-in-law was abducted by “individuals who claimed to be operatives of the ISI” and “tortured into making false allegations” against the judge. The letter elaborated with horror that the abductee “was administered electric shocks”. Another judge said he found secret cameras in his living room and bedroom.
Unsurprisingly, their letter used strong words while saying, “We, therefore, request that a judicial convention be called to consider the matter of interference of intelligence operatives with judicial functions and/or intimidation of judges in a manner that undermines the independence of the judiciary”. It revealed that the six judges had brought such cases to their chief’s knowledge, and had also met the then-Chief Justice of Pakistan to “share their concerns regarding efforts of ISI operatives to affect judicial outcomes”. They said the interference continued despite their chief assuring them that he had taken up the matter with the ISI chief, who gave his word that there would not be any further interference, the letter said.
Imran Khan’s main opponent party, the Pakistan Muslim League-Nawaz (PML-N), had also earlier accused the ISI of intimidating the same court’s officials and influencing its decisions, which it had alleged had led to the convictions of PLM-N supremo Nawaz Sharif after his ouster from the Prime Minister’s chair in 2017.
The letter by the six judges came less than a week after the Supreme Court ruled that the removal of former Islamabad High Court judge Shaukat Aziz Siddiqui in 2018 was illegal. In a public speech that year, Siddiqui had accused the then-ISI chief and other military officials of manipulating judicial decisions and interfering in cases. Siddiqui’s allegations pertained to corruption cases against Nawaz Sharif. The SJC had initiated misconduct proceedings against the judge and recommended his removal from the post. Siddiqui challenged the SJC decision in the Supreme Court, which began hearing the matter only last year. In its order last week, the top court said the SJC recommendation was flawed, and it ordered the restoration of Siddiqui’s status as a retired judge. The letter of the six judges cited the Siddiqui case as well, demanding a probe into the allegations made against the former ISI chief and other military officials.
Reuters reported on 28 March that Law Minister Azam Nazeer Tarar had announced at a news conference in Islamabad that Pakistan would set up an inquiry commission to investigate the accusations leveled by the six High Court judges. Tarar informed that the decision was taken at a meeting between Prime Minister Shehbaz Sharif and Chief Justice Qazi Faez Isa. Conveying that PM Sharif would formally take the decision to set up the inquiry commission at a cabinet meeting to be convened shortly, Tarar added that “We want it to be thoroughly probed because we had also been its victim”.
Both the history and the outcomes of inquiry commissions set up by governments across South Asia have been chequered, with a common criticism being that they are often employed as delaying or time-buying tactics. Noted Pakistani author and journalist Zahid Hussain wrote in 'The judges have spoken' in the Dawn daily on 3 April that “Unsurprisingly, the legal fraternity rejected the government’s decision to form a single-member commission, led by a former chief justice, to investigate the charges as an attempt to whitewash the scandal. Now with former justice Tassaduq Jillani recusing himself, there was no option but for the chief justice to take suo motu notice. A seven-member bench has been formed to hear the case. The IHC six have spoken and now it is up to the apex court to uphold the sanctity of the institution. At stake is not only the independence of the judiciary but also the future of an already tottering democratic process. It is apparent from the letter that the intervention of the intelligence agencies is far more pronounced in political cases. Manipulation through the judiciary has been a major instrument used by the security establishment to perpetuate its political control. While the establishment’s interference is obvious, the judiciary’s credibility has also been hit”.
Hussain also expressed the view that “The rot is much deeper than it seems. What the six brave judges of the Islamabad High Court have penned is just the tip of the iceberg. The shadow of the deep state looms large over the entire system. The letter detailing incidents of intimidation of judges is an indictment of the ubiquitous security establishment. It has triggered a chain reaction threatening the entire edifice. This may not be the first time that allegations about the interference of intelligence agencies in judicial matters have been made — a former judge had even named names. But the detailed account of harassment narrated in the letter sent by the IHC judges is more damning, and fuelling an already volatile political situation”.
Reactions to the letter have been scathing. The Human Rights Commission of Pakistan (HRCP) asserted that “If judges of the higher courts are subjected to such blatant interference, then by extension, it is likely that the lower courts are even more vulnerable. Such authoritarian tactics have compromised the integrity of the legal system at the cost of people’s access to justice, which is at the core of the constitution”. It called for bringing Pakistan’s intelligence services under “transparent civilian oversight” through new legislation, saying it would help strengthen democratic checks and balances.
Ayaz Gul in Voice of America (VOA) quoted Michael Kugelman, the director of the South Asia Institute at Washington’s Wilson Center, as saying that the letter underscored “just how deep, extensive, and serious the establishment’s interference is these days”. Kugelman added on X that “The stunning letter written by six Pakistani high court justices illustrates not only the extent of interference in the legal process, at the highest levels but also the willingness of public servants to go public about it despite the risks that doing so may pose for them”.
Imaan Zainab Mazari-Hazir, a human rights lawyer in Islamabad, highlighted on X that “Everyone has known the pressure the courts have been under, but the bravery of these 6 judges must be applauded”. Mushahid Hussain, a former Pakistani senator, wrote, “Pushing politicos, press, or the judiciary the wrong way is counterproductive and is bound to have consequences, as we see in this letter”. He queried, “Revolt of the judges! Truly unprecedented! This is the litmus test for the Supreme Judicial Council: will it move to protect its protesting ‘brother judges’, who are working in the heart of the nation’s capital?”
Legal opinion was also on the side of the six judges. Al Jazeera quoted lawyer Rida Hosain as saying that the six judges “have shown immense courage” by speaking out and pushing back against the military’s intervention at a time when “silent acceptance is the option exercised by most”. Hosain asserted that “The independence of the judiciary must be upheld in real time. It now falls to the highest court of the land to protect and safeguard judicial independence”. Another lawyer, Abid Saqi, said there was a long history of interference in judicial affairs from “external forces”, adding that the contents of the letter were “based on reality”. Saqi told Al Jazeera that “This is a shocking revelation with regards to the collapse of the judicial sector. Things must reach some resolution with such allegations. Either the judiciary will continue to work as a hand-picked element for the state, or judges with conscience will react. If their reaction gets public support, we can possibly hope for comprehensive reforms”.
Political analyst Benazir Shah underlined that the letter challenged repeated claims by government officials that the military establishment does not interfere in political affairs. He added, “For the new government, which has only been in office for a little over a month now, this is a no-win situation. It must now clarify whether there exists a government policy to bully judges since the spooks on paper are answerable to the executive. Or whether it (the executive) exercises no control over the intelligence officials”. Shah said the onus now lies on Isa, the Chief Justice of Pakistan, to act on the letter by the judges. He said, “It is now his duty to take some action, and his steps will reveal how serious he is to protect the independence of the judiciary”.
Ayesha Siddiqa, Senior Fellow at the Department of War Studies at King’s College, London and an expert on Pakistan military affairs, described the contents of the letter as “scary beyond imagination”. She assessed that “A conflict between a section of the judiciary and the generals is likely to hurt both sides”. Siddiqa argued that “What’s for sure is that the matter has tarnished the image of the military and higher judiciary even further”. She continued, “The Supreme Court itself seems to be in a bind because taking a serious note of the letter would be tantamount to opening a Pandora’s box. A lot of dirty laundry is likely to get washed as the Supreme Court on Monday decided to take suo motu action to investigate the IHC letter. Such laundry may include, as sources from Pakistan suggest, the old Faizabad sit-in case in which the Chief Justice had given a judgement against former ISI chief Faiz Hameed”.
It is an established fact that the powerful army plays an oversized role in making and breaking governments in Pakistan. As Gul pointed out, “The military has ruled Pakistan for more than three decades through coups against elected governments since the country gained independence in 1947. Former prime ministers, including Khan, have publicly accused army generals of interference in national politics even when not in power in violation of the constitution. The army denies the allegations, but its former chief, General Qamar Javed Bajwa, acknowledged in a nationally televised speech just days before his retirement in November 2022 that his institution had been meddling in politics for the past 70 years”.
In such a scenario where the possibility of their courageous act going to waste is real, the six Pakistani judges do deserve respect and credit for standing up against the sabotage and the belittling of the judiciary that is being witnessed in Pakistan, as in other important parts of the world.
