Judicial jingles and shingles

Their letter with big words has opened a can of worms. Now they will discover that words not just have meanings; they also have consequences. The bigger the words, the bigger the consequences.

It is now sufficiently clear that the Islamabad High Court’s 6 judges’ letter to the Supreme Court alleging intelligence agencies’ highhandedness and manipulation of their professional and personal lives is yielding unanticipated results. The Supreme Court press release, issued after a string of background and official meetings by Chief Justice Qazi Faez Isa and his senior judges, has punctured much of the letter’s hype.

The Supreme Court has said no to the judges’ plea for the matter to be taken up by the Supreme Judicial Council. It has said no to the idea of a suo moto notice. It has said no to the letter’s suggestion that there should be a judicial convention. It has totally left out of its contents any reaction to 6 judges’ implied allegations against the chief justice of the Islamabad High Court. It has said no to the 6 judges’ desire to be guided as to how to react and report cases of intelligence agencies’ ingress because, in their view, the code of conduct for the judges is silent on such matters.

More tellingly, the Supreme Court has not treated the 6 judges’ letter’s ‘documented facts’ as facts but instead has chosen to categorize them as serious allegations, serious matters, serious issues, etc. The press release characterizes this ‘factual list’ mentioned in the letter as a mere complaint that needs investigation. It has not accorded any prima facie factual value to it.

The Supreme Court seems to be saying, “Hang on, hang on, let’s not be swept by the sweeping nature of these charges. And while you (six judges) are asking us (the Supreme Court) to guide you on how to respond to such matters, we think the power to respond (contempt notices for instance) was/is already with you. Why are you asking us? And why didn’t you use it when these incidents were happening?”

But the real slap down is the fact that the Supreme Court has decided to let the Prime Minister (head of the executive branch) form a judicial commission to investigate the matter even though the 6 judges were implicating the executive branch’s “policy” to intimidate the judges using intelligence agencies as a tool.

And now that the government has finalized the name of retd CJ Tassaduq Jilani to head the inquiry commission, the exigency that the 6 judges tried to create through their letter seems to be not much of a judicial emergency. The 6 judges now have to patiently wait for the arrival of the slow boat of an inquiry commission under a retd judge—a solid legal mind but not known as a rebel with a cause. Further, the rigmarole of the commission’s TORs and its bureaucratic functioning will calm the matter down even more.

Clearly, the Supreme Court does not want to be sucked into what has now become a full-fledged political drama as the PTI and its lawyer’s wings start to jump up and down asking for the Islamabad High Court’s Chief Justice’s resignation and even calling the Supreme Court Chief justice to do the same. Just as clearly the Supreme Court thinks that there is more to the letter than just a desire by the pack of six to re-establish the lost frontiers of judicial independence.

Chief Justice Qazi Faez Isa is too smart to walk up the trail of false glory that the letter dangles before him and then discover that he is up the creek without a paddle. The judges have made a public spectacle of incidents that they only reported and recorded for two years without ever bringing them out with such hype. Why now? CJ Faez Isa’s precocious wisdom in handling brother judges machinations must have guided him in getting the right answer. Hence the inquiry commission.

It is unlikely, however, that the letter would fade away. The PTI and some bars (like the Balochistan Bar and the Lahore High Court Bar) have outrightly rejected the inquiry commission and plan to hold protest meetings. PTI’s media war against CJ Faez and intelligence agencies is moving into higher gears. Ironically, the 6 judges’ declared aim in the letter is to uphold the glorious principles of the judiciary’s independence and to restore its credibility with the public. They have ended up achieving the exact opposite: the judiciary is more divided, more scandalized, more bitter, and seen more as a pawn in political and personal power-play than ever before. Now it is bar vs bar, judge vs judge, judge vs chief justices, group of judges vs group of judges, and political parties vs different judges.

Meanwhile, we don’t know how to view the future work of the 6 judges or their chief justice whom they have marked as a man responsible for their plight. Are they free agents? Or are they just agents? Are they clear of deep-seated biases and personal agendas? Are their minds clear of pre-disposed thoughts? Are they champions of the PTI and Imran cause? Are they opposed to the ISI and the Army and see them as a constant threat? Will their decisions be based on merit or their grievances in the letter become the driver of their judgments? And what if the inquiry commission finds no evidence to support their claims? How should they be dealt with then?

Their letter with big words has opened a can of worms. Now they will discover that words not just have meanings; they also have consequences. The bigger the words, the bigger the consequences.