THE SUPREME COURT OF (Appellate Jurisdiction) CMA No. / 2024 IN Constitution Petition No.17/2024 CMA for Proposals On behalf of the Petitioner Filed On:-06-05-2024 Karachi Bar Association through its President and General Secretary, Karachi .-Petitioner ‘Versus Federation of Pakistan through Secretary Cabinet Division, Islamabad & others .Respondents Counsel for the Petitioner: Mr. Salahuddin Ahmed, ASC Syed Rifaqat Hussain Shah, AOR Counsel for the Respondents: _ _ _INDEX poe Sr. aaa Page Ne ____ eseription Date ine 1 | CMA for Proposals on Behalf of Karachi Bar| 96 95.9954 | 01-06 Association - 2_| Affidavit of Facts 7 06-05-2024 | _07 3_| Affidavit of Service 06-05-2024 | 08 Certified that the paper book as bound is complete and correct Syed Rifaqat Hussain Shah ‘Advocate-on-Record Supreme Court of Pakistan Islamabad For the Petitioner Dated:-06-05-2024-~\c7 ‘THE SUPREME COURT OF PAK! (Constitutional Jurisdiction) C.M.A. No. (2024 IN n No.17/2024 Constitution Peti Karachi Bar Association through its President and General Secretary, Karachi Petitioner Versus Federation of Pakistan through Secretary Cabinet Division, Islamabad & others Respondents PROPOSALS ON BEHALF OF KARACHI BAR ASSOCIATION PURSUANT TO THE SUPREME COURT ORDERS DATED 03.04.2024 & 30.04.24 IN SUO MOTU CASE NO. 1/2024 Respectfiully submitted: 1. The proposals below are segregated under four heads: a) Proposals regarding the duty to report, the duty to protect and the duty to act whenever confronted with attempts to interfere with the independence of judiciary; b) Proposals regarding structuring of discretion of Chief Justices of the High Courts in respect of formation of benches and fixation of cases: ) Proposals to bring intelligence agencies within the fold of law; 4) Proposals regarding inquiry, and affixation of responsibility, in relation to reported incidents of interference with independence of judiciary, A) Proposals regarding the Duty to Report, the Duty to Protect and the Duty to Act 2. It is essential to end the culture of impunity prevalent among those seeking to interfere ‘with judicial independence, Presently, the assumption by State and private actors is there is no harm in trying. At most, the attempt to induce or intimidate shall be unsuccessful. But the chance of sanctions for such attempts is minimal as judges are, by and large, content to suffer in silence. ‘And repeated attempts shall ~ sooner or later ~ bear fruit. 3. The first step to ending this culture is to mandate effective and timely reporting’, That is essential for effective investigation and any subsequent sanctions. Equally important, the knowledge that one’s approach shall be reported is, in itself, a significant deterrent - both for extemal actors (and for intermediaries, who may possibly be from within the judiciary itself) 4. There are two main reasons why people are reluctant to report: fear of reprisals and belief that reporting is futile”. Thus, imposing any duty to report must be coupled with a corresponding uty to protect and a duty to act, To that end, the following may be considered: All five High Courts have, in their Proposals, endorsed the need for timely and effective reporting. *Pg.8, “Reporting Mechanisms in Sport” - United Nations Office on Drugs and Crime (Vienna, 2019); see also ICC ete-2)- 1) Any judge, at whatsoever level, who is confronted with or witnesses an improper attempt 10 interfere with or influence the functions and duties of the judiciary — whether through inducement, intimidation, threat or otherwise — must report the same with all relevant details 10 the appropriate authority within 7-days. Duty to Report ii) The duty to report applies regardless whether the attempt is direct or indirect, and whether from a State actor, a private actor or from within the judiciary itself. iii) That a firewall must be retained between the executive and the judiciary. As such, barring close family members, Judges must avoid any private meetings or communications with State functionaries, and especially those belonging to intelligence agencies, except where strictly necessary for performance of official functions. Where such meetings or communications are necessary for the performance of his official duties, the judge must report the same in advance and send a subsequent summary of the meeting/communication 10 the concerned Chief Justice or District Judge, as the case may be, with a copy to the reporting cells mentioned in clause (xiv) below. iv) A failure to adhere to the duty to report shall constitute misconduct. Duty to Protect v) It is the duty of the judicial institution, and the appropriate authority in particular, to protect a judge who exercises his duty to report from any reprisals. This includes reprisals from within the judicial institution and from external actors. vi) The appropriate authority shall, in keeping with the nature and gravity of the imerference, and in coordination with all concerned executive and judicial authorities, expeditiously take all requisite measures to ensure the safety and well-being of a judge and/or his family and to safeguard the independence of the judiciary. vii) A judge who exercises his duty to report shall not, on that account, be visited with any disciplinary proceedings or withholding/deferment of promotions and/or fresh appointments or any other censure or sanctions including but not limited to non-routine transfers/postings or deprivation of part or whole of his judicial work nor shall the making of report be reason, without the consent of the reporting judge, to cause the judge to cease hearing any case to which the attempt to interfere relates; Provided that the above shall not bar action against a judge who is proven, in appropriate proceedings, to have made a false and malicious report. For avoidance of doubt, it is clarified mere failure of a judge to prove the allegations in his report does not constitute falsity or malice. The appropriate authority proposing action against the reporting judge in such cases shall consider, before initiating any proceedings, whether any positive evidence is available to prove falsity or maliciousness of the allegations. vili) A failure by the appropriate authority 10 properly perform its duty to protect may, in appropriate cases, constitute misconduct Duty to Act ix) In addition to his duty to report, the concerned judge shall consider whether it is permissible and appropriate for him to individually initiate proceedings for contempt or proceedings under the Code of Criminal Procedure 1898° and shall proceed to do so where permissible and appropriate unless he considers, for reasons recorded in writing, that further action is unnecessary. *For example, under section 228 PPC read with sections 476 and 195 (1) (b) of the Cr..C.8) 5, x) In all other cases, he shall, along with his report, include a request for further action from the appropriate authority which shall expeditiously consider the report and request ‘and take any requisite action thereafier which may include, but is not limited 0 4@) initiation of contempt proceedings; 5) directing the initiation of criminal proceedings through the Registrar of the High Court or Supreme Court; ¢) making the report public; 4) in case of an actor belonging to any State department or institution, instruct the concerned head of department or other supervisory body to initiate disciplinary proceedings; ©) pass any requisite or appropriate administrative orders, directions or instructions within the judiciary or to any executive authority to safeguard the independence of judiciary; (fi treat the reportirequest of the judge as a petition under Article 184 (3) or Article 199, as the case may be, and forward the same — as per relevant procedure — to be taken up on the judicial side. xi) In the event the appropriate authority decides not to take any further action, it shall record its reasons for its decision. xii) A failure 10 properly perform the duty to act may, in appropriate cases, constitute misconduct General xifi) The appropriate authority, in all such cases relating to judges of the High Court and judges subordinate to them, shall be the concerned High Courts (acting through their ‘Administrative Committees comprising, depending on the strength of the High Court, at least the respective Chief Justices and the two senior-most judges). The appropriate authority, in all such cases relating to judges of the Supreme Court, shall be a Committee comprising the CJP and the four senior-most judges, xiv) The Supreme Court and the High Courts shall establish reporting cells 10 monitor any attempts to interfere with or influence the judiciary. All reports made in this regard and details of any action/s taken pursuant thereto along with regular updates shall be duly forwarded to the cells of the concerned High Court as well as the Supreme Court. xv) The appropriate authorities shall promptly consider and expeditiously act to resolve any such matters as and when they arise in keeping with the gravity and nature of the report but, in any event, not less than once a month. xvi) These guidelines may be issued to the Registrars of the Supreme Court and the High Courts as well as the Secretary of the Supreme Judicial Council with the request that the matter be placed before their Full Courts and the Council to make appropriate amendments to their respective Rules and Procedures and the relevant Codes of Conduct accordingly. Proposals to structure the discretion of Chief Justices of the High Courts In Raja Amer Khan y. FoP, this Court held, in relation to the vires of the Supreme Court (Practice and Procedure) Act, 2023, at paragraph 20, that the “/tJhe Constitution does not grant the Chief Justice power to decide cases unilaterally and arbitrarily", and “the Chief Justice's opinion [cannot] prevail over that of the Judges of the Supreme Court”. Moreover, andimportantly, it was observed “[t]he term ‘Master of the Roster’ is not mentioned in the Constitution, in any law or even in the Rules, let alone stating therein that the Chief Justice, is the Master of the Roster and empowered to act completely in his discretion”. The Court warned, at paragraph 23, that “[h]istory stands witness to the fact that when power is concentrated in an individual, disastrous consequences invariably follow”. The same principle applies to the High Courts. Article 192 of the Constitution provides for a High Court comprising the Chief Justice and the other judges. 6. Reserving the power to constitute benches and fix cases solely to Chief Justices and that to without any rules to structure their discretion not only promotes arbitrariness but is inimical to both the intemal and extemal independence of judiciary. Intemally, when judges know their continued presence in a bench hearing any particular case depends on the continuing discretion of the Chief Justice, they are more likely to lean towards his views. Externally, for the State or other outside actors interested in influencing judicial outcomes; it makes their job easier as they only need to focus all their efforts on one individual. Indeed, it may be noted that even summoning a Full Court to amend the relevant Rules or to decide upon an institutional response to an emergent instance of interference requires the willingness of the Chief Justice. As observed by this Bench during hearing , the failure of an institution to regulate or structure its own discretion invites external attempts to regulate the same. 7. Assuch, it is proposed i) That the constitution of benches, and the fixation of cases before such benches, should be as per transparent criteria and decided by the Administrative Committees comprising, depending on the strength of the High Court, at least the respective Chief Justices and the hwo senior-most judges. ii) That a Full Court meeting of a High Court may be summoned at any time by a Chief Justice or a majority of the Administration Committee or through requisition of at least 1/3" of the sitting judges. iii) The above guidelines may be issued 10 the Registrars of the High Courts with the request that the matter be placed before their Full Courts and the Council to make appropriate amendments to their respective Rules and Procedures. ©) Proposals to bring intelligence agencies within the fold of law 8. Article 4 of the Constitution grants every citizen (or any other person for the time being in law) the inalienable right to enjoy the protection of law and to be treated in accordance with law. In particular, no action detrimental to the life, liberty, body, reputation or propertyof a person can be taken except in accordance with law nor can any person be prevented from doing what is not prohibited by law nor compelled to do what is not required by law. As clear from Article 260; Jaw, here, means law framed by or under authority of Parliament, 9. The intelligence agencies of Pakistan namely the Inter Services Intelligence, the Intelligence Bureau and the Military Intelligence, presently, do not enjoy sanction of any law. To the extent they exercise any power or take any action in relation to a citizen of Pakistan (or any other person for the time being in Pakistan); the same is unconstitutional. This includes the power to conduct surveillance, the power to prepare intelligence reports that are then relied upon to assess a citizen’s fitness for appointment to public office, the power to arrest and take into custody and the power to participate in any Joint Investigation Team. They operate in a legal vacuum and absent any scrutiny or any requirement to take permissions for any action whatsoever - which is the root cause of repeated transgressions. 10. This aspect was duly noted by this Court both in the Faizabad Dharna case and Air Marshal Asghar Khan's case*. In the latter, it was stated “[iJnvolvement of the officers/members *Suo Motu Case No.7 of 2007 (Faizabad Dharna) (PLD 2019 SC 318) Air Marshal (R) Asghar Khan v. Gen. (R) Mirza Aslam Baig (PLD 2013 SC 1)of secret agencies i.e. ISI, MI, IB, etc, in unlawful activities, individually or collectively calls for strict action being violative of oath of their offices, and if involved, they are liable to be dealt with under the Constitution and law”. In the former, it was noted that to ensure “transparency and the rule of law it would appropriate to enact laws which clearly stipulate the respective mandate of the intelligence agencies”. An opportunity was granted to the legislature to remedy the situation by bringing such agencies within the framework of law. Nothing, however, was done - perhaps because this Court exercised restraint and did not spell out the consequences of the absence of a legal framework; namely that any power exercised or action taken by such agencies in respect of a citizen would be unconstitutional. 11. In order to enforce constitutional mandate, this Court has - on several occasions - directed the government to ensure the promulgation of appropriate legislation. Reference may be had to the cases of GoB v. Azizullah Memon, GoS v. Sharaf Faridi, Khan Asfandyar Wali v. FoP, Al Jehad Trust v. FoP, Nadeem Ahmed v. FoP, Al Jehad Trust v NAB, PoS v. MOM, ECP v Province of Punjab, Jurists Foundation y. Federal Government and MQM v. Pakistan’. In several of these earlier judgments, and lastly in the Jurists Foundation judgment (relating to the COAS extension), this Court expressly spelt out the attendant consequences if the requisite legislation was not promulgated. As such, it is proposed: 4) The Government be directed to ensure the promulgation of legislation for the establishment and regulation of intelligence agencies and to define their respective ‘mandates and provide for appropriate safeguards and scrutiny for their actions within a period of 3-months failing which their status and operations, insofar as they relate to citizens of Pakistan and persons for the time being in Pakistan, shall be deemed unconstitutional. D) Proposals regarding inquiry and affixation of responsibility in relation to reported instances of interference with independence of judiciary 12. That the numerous instances of executive interference and intrusion (especially intelligence agencies) in judicial functions highlighted in the IHC Judges Letter and the earlier letters appended thereto coupled with a history of reported unlawful intrusions on part of the executive/intelligence agencies noted, inter alia, in numerous judgments of this Court including, Shaukat Aziz Siddiqui; Justice Qazi Faez Isa, Chief Justice Iftikhar Muhammad Chaudhry, Benazir Bhutto’, Faizabad Dharna and Air Marshal (R) Asghar Khan; reflect a deliberate and consistent pattern of unlawful transgressions by intelligence agencies designed to suborn the independence of judiciary. 13, That all the earlier judgments have, nonetheless, not been successful in stemming the tide as while all these judgments laid down future prescriptions; none of them affixed liabilty for past misconduct. This has created a culture of executive impunity on the one hand and a culture of judicial acquiescence on the other. As such, it is constitutionally imperative to conduct a thorough and impartial inquiry in respect of such past and present transgressions, expose and punish wrongdoers, and to deter future transgressions. 14, That the very nature of such inquiry is that it cannot be conducted under auspices of the Federal Government under the Commissions of Inquiry Act 2017 and must be conducted by this Court itself or through commission constituted by this Court as per terms of reference settled by this Court and reporting directly to this Court. "See PLD 1993 SC 341, PLD 1994 SC 105, 1999 SCMR 1379, PLD 2001 SC 607, PLD 2010 SC 1165, PLO 2011 SC 811, PLD 2024 SC 531, PLO 2014 SC 668, PLD 2020 SC 1 and PLD 2022 SC 539, “Shaukat Aziz Siddiqui v. FoP (Unreported judgment dated 22.3.2024 in CP No.6 of 2018) Justice Qazi Faez Isa v. FoP (PLD 2021 SC 1 followed by review judgment in PLD 2022 SC 119) Chief Justice Itikhar Muhammad Chaudhry v, FoP (PLD 2010 SC 61) Benazir Bhutto v, President of Pakistan (PLD 1998 SC 388)15, - 67 ‘That it is settled jurisprudence that this Court, in its jurisdiction under Article 184 (3) read with Article 187 (1) and Article 199 (1) (c) of the Constitution, is not merely a tribunal of Jaw but a tribunal of law and fact and possesses plenary powers to conduct factual inquiry and even record evidence directly (under Order XXXII Rule 4 of the Supreme Court Rules 1980) or through a commission/fact-finding body (under Order XXXII of the Supreme Court Rules 1980 read with Order XXVI CPC) and may take assistance (under Article 190 of the Constitution) from any executive authority or person for this purpose and consequently pass orders thereon. AS far back as 1994, one of the founding fathers of this Court's suo motu jurisprudence, Saleem Akhtar J. held “[t7his Court has vast power under Article 184(3) to investigate into ques ions of fact as well as independently by recording evidence, appointing commission or any other reasonable and legal manner to ascertain the correct position’. Similarly, independent commissions for factual enquiry have been appointed by this Court in suo motu proceedings right from Darshan Masih® through Watan Party (Memo Gate)’ and Quetta Carnage’ case down to CP No.5 of 2024 - Public at Large v. CDA (Deforestation of Fatima Jinnah F-9 Park) 16. 17. Drawn. ry. fi Thus, it is proposed: i) That this Court independently conduct factual inquiry into the matters mentioned in the IHC Judges Letter (and the earlier letters appended thereto) using the assistance of such executive agencies as it deems appropriate and record such evidence as it considers fit ‘and affix responsibility and pass consequential orders or, in the alternative, frame ‘appropriate terms of reference and directly appoint a Commission to undertake such exercise with the assistance of such executive authorities as the Commission may deem fit and furnish interim and/or final Report to this Court for further directions, if any. That the undersigned counsel has shared and discussed the instant proposal with other counsels for various Bar Association including the counsel for Islamabad High Court Bar Association. While all are agreed on the common objective of promoting the independence of judiciary, there are some different ideas regarding the right approach in the present circumstances which are duly shared in other proposals filed. By Salahuddin Ahmed Syed Rifaqat Hussain Shah Advocate Advocate-on-Record Supreme Court of Pakistan Supreme Court of Pakistan Islamabad For the Petitioner Dated:- 06-05-2024 General Secretary WP Salt Miners Labour Union v. Director, Industries and Mineral Development (1994 SCMR 2061) *oLp 1990 sc 513 “pup 2012 Sc 292 59 Motu Case No.16 of 2016THE SUPREME COURT OF PAKISTAN (Constitutional Jurisdiction) C.M.A. No. ae IN Constitution Petition No.17/2024 Karachi Bar association through its President and General Secretary, Karachi Petitioner Versus Federation of Pakistan through Secretary Cabinet Division, Islamabad & others ... Respondents AFFIDAVIT OF FACTS Syed Rifaqat Hussain Shah ‘Advocate-on-Record Supreme Court of Pakistan Islamabad I the above named deponent do hereby solemnly affirm and declare as under:~ 1. That the facts contained in accompanying C.M.A for Proposals on Behalf of Karachi Bar Association Pursuant are true and correct to the best of my knowledge and information. 2. ‘That the said facts have been obtained from the perusal of the record as well as instructions received from the Petitioner. SWORN at Islamabad on this 06" day of May, 2024 DEPONENTTHE SUPREME COURT OF PAKISTAN (Constitutional Jurisdiction) C.M.A. No. /2024 IN Constitution Petition No.17/2024 Karachi Bar association through its President and General Secretary, Karachi ..Petitioner Versus Federation of Pakistan through Secretary Cabinet Division, Islamabad & others .Respondents AFFIDAVIT OF SERVICE ‘Syed Rifaqat Hussain Shah ‘Advocate-on-Record Supreme Court of Pakistan Islamabad I the above named deponent do hereby solemnly affirm and declare as under:- 1. That I did serve the Respondents of my having filing C.M.A for Proposals on Behalf of Karachi Bar Association Pursuant, on behalf of the Petitioner, in the above noted case, in the Supreme Court of Pakistan at Islamabad. SWORN at Islamabad on this 06" day of May, 2024 DEPONENTIN THE SUPREME COURT OF PAKISTAN (Constitutional Jurisdiction) C.M.A. No., /2024 IN Constitution Petition No.17/2024 Karachi Bar association through its President and General Secretary, Karachi Petitioner Versus Federation of Pakistan through Secretary Cabinet Division, Islamabad & others Respondents NOTICE To, Please take Notice that today I am filing C.M.A for Proposals on Behalf of Karachi Bar Association Pursuant, on behalf of the Petitioner, in the above noted case, in the Supreme Court of Pakistan at Islamabad. Syed Rifaqat Hussain Shah Advocate-on-Record Supreme Court of Pakistan Islamabad For the Petitioner Dated:-06-05-2024