ISLAMABAD: Justice Naeem Akhtar Afghan, a member of the Supreme Court`s constitutional bench (CB), has questioned why the offices of the president, prime minister and the law division are being dragged into the controversy over the appointment of judges when allegations had been levelled against intelligence agencies for interference in judicial affairs.

The observation came when senior counsel Muneer A. Malik, representing five Islamabad High Court (IHC) judges, argued that the real reason behind the transfer of three judges to the IHC was the allegation levelled against intelligence agencies by six IHC judges.

In a joint letter sent to the Supreme Judicial Council on March 25, 2024, the six judges had blamed intelligence agencies for meddling in judicial affairs.

In response to the argument by the senior lawyer, Justice Afghan asked if the allegations were attributed to the intelligence agencies, why the three high offices were being dragged into the controversy to build a ground of malice. He also wondered if the intelligence agencies had demolished the entire appointment procedure when they had no constitutional role in judges` appointment.

Headed by Justice Muhammad Ali Mazhar, the five-judge constitutional bench was hearing a joint petition filed by five IHC judges Justices Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan and Saman Rafat Imtiaz pleading that three transferred judges should not be treated as IHC judges until they take a fresh oath under Article 194, read in conjunction with Schedule III of the Constitution.

The counsel said the letter to the SJC triggered a reaction, as a bitter social media campaign against the judges ensued, whereby the degree of a signatory of the letter and the loyalty of another judge were questioned and cameras were allegedly installed in the bedroom of another judge.

He further alleged that this was a conspiracy contrived at the offices of the PM and law ministry to take over the control of IHC andif the president had also applied his mind to this effect, then the entire exercise fell within the category of malice in law.

Since direct proof of malice was always virtually impossible, malice was always drawn by inferences, he said.

At this, Justice Shahid Bilal Hassan interjected to make a statement that during his 13-year career as a judge, he was never approached by any intelligence agencies. He also reminded the counsel that soon after the letter by IHC judges, full-court meetings were conducted in all high courts wherein it was resolved that no such interference by intelligence agencies had ever occurred and the problem confined to the IHC only.

Justice Hassan also noted that the allegations of malice against the office of the president and the members of the Judicial Commission of Pakistan a body that appoints judges were very serious in nature.

In response, the counsel cited the example of Justice Shaukat Aziz Siddiqui who was removed as IHC judge and later vindicated by the SJC and also cited interviews of certain government functionaries in the media.

At this, Justice Salahuddin Panwhar questioned if the constitutional bench was bound by the interviews or newspaper clippings.

The counsel recalled how JCP, while appointing two additional judges in IHC, deliberately left vacant three permanent offices of the judges in the high court. Since the JCP left three seats vacant, the president took it upon himself to fill these seats by invoking Article 200 when the authority to appoint permanent judges rests only with JCP.

According to the counsel, the Constitution does not contemplate filling of vacant seats by invoking Article 200, rather the article should be exercised only for a temporary basis.

Justice Mazhar asked both the counsel and Attorney General for Pakistan Mansoor Usman Awan to come up with reasons on the part of the JCP to leave the three offices of the judges vacant while appointing two additional judges.

The counsel said, `A judge on the 16th position in seniority was imported from the Lahore High Court and put in place at the senior-most position in IHC`, adding that after the transfer of the three judges, the administrative and promotion committees of the IHC were also changed.

The transfer of the three judges to the IHC was not in the public interest, but done for extraneous collateralreasons,he alleged.