ISLAMABAD:
Although sacked judge Tariq Mahmood Jahangiri retains the right to appeal before the newly established Federal Constitutional Court (FCC) against the Islamabad High Court (IHC) order that removed him from office, the prevailing circumstances indicate that his prospects of securing substantive relief in the near future are slim.
Since the passage of the 26th Constitutional Amendment in October last year, the judicial terrain has shifted fundamentally as the executive has increasingly gained the reins to assert its weight over the judiciary in multiple ways. Litigants with grievances against state institutions are finding it harder to obtain relief from the superior courts.
Moreover, matters have been further complicated by the 27th Constitutional Amendment, which led to the creation of the FCC as the apex court, with its first six judges appointed at the discretion of the incumbent government.
Under the law, Mr Jahangiri has 30 days to challenge the IHC division bench verdict before the FCC.
A lawyer reckons that while the sacked judge has a strong case on several legal grounds, the likelihood of immediate relief remains low in the current climate. In such circumstances, it may be prudent to file the petition and wait for a more opportune moment to press the case.
Meanwhile, Islamabad-based lawyer Waqas Ahmad says the jurisprudence in the country has not been consistent and has instead evolved with changing circumstances and the political landscape. At times, courts have adopted a pro-executive approach, while at other times jurisprudence has been more assertive, relief-oriented and inclined against executive actions, he noted.
Inconsistency in jurisprudence
Pakistan’s superior judiciary has long displayed an uneven and shifting jurisprudential record. At different moments, courts have validated extra-constitutional actions that were subsequently declared unconstitutional, exposing sharp breaks rather than continuity in legal reasoning.
There was also a period when the superior judiciary was accused of encroaching upon executive and legislative domains. In contrast, the prevailing perception today is that the balance has tilted the other way as other institutions exert influence over the judiciary and judges are seen as aligned with executive thinking, occupying a dominant position.
The case of former Islamabad High Court judge Shaukat Aziz Siddiqui illustrates these fluctuations. During the tenures of former chief justices Saqib Nisar, Asif Saeed Khosa, Gulzar Ahmed and Umar Ata Bandial, Siddiqui repeatedly failed to secure relief.
However, this changed under former CJP Qazi Faez Isa, when his removal was ultimately declared unconstitutional.
A similar reversal is evident in the interpretation of Article 62(1)(f) of the Constitution. During the tenure of CJ Nisar, the disqualification of lawmakers under this provision was held to be for life. That position was later overturned under CJ Isa, marking another clear departure from earlier jurisprudence.
Jahangiri was due to retire on July 10, 2027. He was appointed as an additional judge of the Islamabad High Court in December 2020 during the Pakistan Tehreek-e-Insaf (PTI) government. Prior to this, he served as deputy attorney general under the PPP government and later held the post of advocate general for the Islamabad Capital Territory (ICT) during the PML-N government.
There has also been a perception that Mr Jahangiri was not considered to be in the good books of the present regime. He was among the judges who signed a letter addressed to the Supreme Judicial Council (SJC), seeking guidance over alleged interference by agencies in judicial affairs.
Subsequently, he was appointed to an election tribunal to hear petitions concerning three National Assembly seats from Islamabad. However, during the course of these proceedings, the executive took exception, and a legislative amendment was introduced to withdraw the cases from his tribunal.
In the prevailing circumstances, securing relief appears difficult for Mr Jahangiri, as powerful quarters are seen as keen to use his case to set a precedent for other members of the judiciary.
Lawyers believe that the removal of a judge through a writ of quo warranto has a chilling effect on the judiciary. However, it is also a fact that more than 100 judges were removed through the July 31, 2009 judgment.
Advocate Azhar Sadiq says that the removal of Justice Tariq Jahangiri through a writ of quo warranto is without lawful authority, coram non judice and void ab initio.
“Article 193 of the Constitution exhaustively prescribes the qualifications for appointment as a judge of a high court, requiring only that a person be a citizen of Pakistan and possess either ten years’ standing as an advocate of a high court or ten years’ service in the judicial service of Pakistan,” he notes.
“It is undisputed that Justice Jahangiri continues to be an enrolled advocate and that his license to practice has neither been suspended nor cancelled by any competent bar council,” the lawyer says.
Azhar Sadiq further states that the Constitution does not prescribe any additional academic qualification, nor does it render a judge disqualified on the basis of an alleged defect in an educational credential.
Consequently, the essential jurisdictional precondition for issuance of a writ of quo warranto – the absence of a constitutional qualification – was never met.
Even otherwise, allegations relating to a “fake degree”, assuming them to be correct without admission, do not constitute a disqualification under Article 193 and cannot lawfully form the basis for removal of a sitting High Court judge through writ jurisdiction.
Any question of misconduct, misrepresentation or incapacity of a judge falls exclusively within the constitutional domain of Article 209 and the Supreme Judicial Council, and no other forum is competent to assume such jurisdiction.
The impugned judgment therefore, amounts to a usurpation of constitutional authority, undermines judicial independence, and is tainted by mala fides in law; it is consequently a nullity and liable to be set aside for want of jurisdiction and for being in direct violation of Articles 193 and 209 of the Constitution, says Azhar Sadiq.
Lawyers are also debating the possible outcome of the complaint of misconduct filed by Tariq Jahangiri against IHC CJ Sardar Muhammad Sarfraz Dogar.
Barrister Salahuddin Ahmed, counsel for Jahangiri, states that the complaint against Justice Dogar before the SJC remains relevant.
The fate of the complaint is also crucial for Tariq Jahangiri’s case.
Regarding the available options, Abdul Moiz Jaferii advocate says that legally, Tariq Jahangiri can file contempt proceedings against Karachi University for not disclosing how its decision to declare this degree invalid was suspended by the Sindh high court.
“He can also appeal this decision to the Federal Constitutional Court whilst also bringing into challenge the notifications that have followed the decision which de-notify him.”
Jafferi further states that practically, justice Jahangiri should focus on exposing this system and proceeding with the Supreme Judicial Council reference against Justice Dogar. “This was not a hearing in court. It was a shambolic execution and must be outed as such. The regime’s hatchet men in robes must be exposed,” he adds.
