ISLAMABAD:
Legal minds are in shock over an unprecedented development in the Islamabad High Court (IHC) where Justice Tariq Mehmood Jahangiri has been excluded from next three days roster.
Though a division bench led by Chief Justice Sarfraz Dogar has yet to issue written order in Justice Jahangiri case, there are reports that the judge has been restrained from judicial work.
The situation will be clear after going through the written order. However, it is clear from the new roster that Justice Jahangiri is not part of any single or division bench for next three days. It will be interesting as whether written order will be issued after immense criticism by lawyers.
Legal minds are unanimous that superior court judge cannot be restrained from judicial work through a judicial order as it will invite anarchy in the judiciary. Former Sindh High Court Bar Association (SHCBA) president Salahuddin Ahmed says that it is hard to imagine an order “more blatant, illegal or an order more obviously dripping” with bias.
“Justice Jahangiri was a petitioner in the Supreme Court against Chief Justice Dogar’s transfer to the IHC. Both the Judges Code of Conduct and the basic judicial ethics dictated that Chief Justice Dogar could not sit on a bench hearing the petition against Justice Jahangiri. But he did,” he said.
Salahuddin further stated that the Supreme Court in Gul Taiz Marwat has declared that one bench/judge in the high court cannot entertain a petition against another bench/judge. It is barred by Article 199(5) of the Constitution and the rules of judicial comity. But the bench of Chief Justice Dogar and Justice Azam had obviously neither read the judgment nor the Article 199.”
He also said that the Supreme Court in Iftikhar Chaudhry’s case has declared that a judge cannot be restrained from judicial work as that amounts to a removal of a judge, which can only be done by the Supreme Judicial Council under Article 209 of the Constitution. But this bench has probably not read that judgment either.
Faisal Siddiqi advocate said that the virtual suspension of Justice Jahangiri is as unconstitutional and as reckless an act as suspension of former chief justice Iftikhar Chaudhry by the military ruler General Pervez Musharraff. Chief Justice Dogar is walking in the dictator’s footsteps. But the entire responsibility and onus lies with Chief Justice Yahya Afridi – who can stop the complete anarchy at the IHC, he added.
Former additional attorney general Tariq Mahmood Khokhar said that this is a flagrant violation of the Supreme Court judgment in CJP Iftikhar Muhammad Chaudhry case, which unequivocally ruled against “even a temporary interference with the office of a judge ” by any authority, against whom a reference is pending” before the SJC.
Waqar Rana Advocate said that it has already been held in Iftikhar Chaudhry case that a judge cannot be suspended during proceedings on charges of misbehaviour against him. Even the ordinance whereby the SJC is empowered to suspend a judge was declared unconstitutional.
“In a writ of quo warranto no interim relief in the form of suspension is given because that would amount to a final relief. The suspension order is patently illegal, without jurisdiction and mala fide. The judge must file petition against the order,” Rana adds.
Barrister Asad Rahim Khan said it has been laid down as clear as day in Iftikhar Chaudhry versus President of Pakistan case that not even the SJC has the authority to restrain a judge from carrying out his functions. And that is in relation to the very constitutional body tasked with holding judges accountable, what to say of their fellows serving on the same bench.
Khan stated that given this declaration of the law, under what authority can a judge be blanket-restrained from upholding his oath? Justice Jahangiri’s decisions are free to be appealed, upheld, or set aside, as with any other judge of the superior courts. But to restrain him from his duty, in and of itself, is for a judge to act as if within a state of exception. Judicial independence has suffered enough,” he said.
Abdul Moiz Jaferi advocate said: “We have been in the high court of Sindh to undo the unfair means committee decision as endorsed by the syndicate of the University of Karachi for a year now. We have been pressed to explain our locus standi, our standing to sue in Tariq Jahangiri’s stead. We are two bar associations and the professor, who was abducted on his way to protest at the syndicate.”
Hafiz Ehsaan Khokhar stated that the recent suspension order concerning a sitting IHC judge and the reported internal differences among judges raise serious concerns for the credibility of the judiciary. Such unprecedented judicial-side orders, passed without the required judicial restraint, are not in the interest of justice or the confidence of citizens.
He emphasised that under Article 209 of the Constitution, the proper forum to address allegations against judges is the SJC. Any action outside this constitutional path undermines judicial independence and the due process. Judicial restraint should have been exercised before passing such an order, as institutional credibility depends on following the correct constitutional forum.
