ISLAMABAD:
After the submission of petitions on different issues by five Islamabad High Court (IHC) judges, the ball is now in the Supreme Court’s court, as it will decide their grievances related to judicial independence as well as the trichotomy of powers.
This is not the first time the IHC judges have approached the apex court. In March last year, they had written a letter to the Supreme Judicial Council (SJC) seeking guidance on the interference of executive agencies in judicial functions.
It is noteworthy that Justice Muhammad Arbab Tahir was also part of the group of judges at that time. However, he is no longer with them, which may have implications for their case.
Former Lahore High Court judge Shahid Jamil Khan expressed deep sorrow over the development, saying that this is the worst era in Pakistan’s judicial history. Judges of the IHC, constitutionally required to dispense justice, are themselves seeking justice through a constitutional petition.
“Though unusual to file a petition in person, I endorse it as necessary to jolt the conscience of the judges sitting in the same Supreme Court building, where the aggrieved judges went in an ordinary way to seek justice. I personally felt dismayed to witness the abased corpus of the judiciary, kneeling before a hybrid system of which many sitting judges are an integral part,” said the former LHC judge.
Renowned lawyer Saiful Malook said he had read the constitutional petitions filed by IHC judges. He noted that the main allegations in the petitioncomplaints about executive interference in the functioning of the high court, judges being pressured not to decide cases in accordance with the Constitution and law, and breaches of the judicial oathwere unprecedented.
He said these allegations were not only against the executive but also against the outgoing chief justice and the Supreme Court of Pakistan itself.
“It seems to be a case of first impression, ever brought by judges of a federal constitutional court in any country around the world. A historical burden has been laid on the Supreme Court: either to stay with constitutional safeguards and protect the fundamental rights of judges of a constitutional court, or declare that their position is no better than the petitioner judges.
“If they are unable to uphold the Constitution, they should say so openly, so that the people of Pakistan know clearly that the judicial organ of the state is a fraud, and that the judges of the highest court are only concerned with a monthly salary of Rs3 million plus perks worth more than Rs5 million each, and that no one should look to them for justice under the Constitution and law,” said Malook.
Advocate Chaudhry Faisal Hussain said that, as a lawyer, it was a very depressing and sad day.
“It is indeed painful and stressful to see my own institution crumbling in such a manner that judges themselves are in the apex court to seek justice. This is not a person-specific issue; it’s the institution of the judiciary that is under attack,” he added.
He further stated that the order restraining Justice Tariq Mehmood Jahangiri was illegal and unconstitutional, since under the Constitution only the Supreme Judicial Council (SJC) has the authority to take up complaints against superior court judges.
When six IHC judges wrote to the SJC earlier, they were summoned by former chief justice of Pakistan Qazi Faez Isa at the CJP House. Reports suggested that Justice Isa was visibly upset by their letter.
However, he was compelled to convene a full court meeting to discuss it. The next day, the former CJP, accompanied by Justice Syed Mansoor Ali Shah, met Prime Minister Shehbaz Sharif and suggested the constitution of an inquiry commission to probe the allegations.
When former CJP Tassaduq Hussain Jillani recused himself from leading the inquiry commission, CJP Isa had no choice but to initiate suo motu proceedings on the IHC judges’ letter.
During the hearing, different high courts also admitted that agency interference in judicial functions was an “open secret.” The matter remains pending.
Meanwhile, the government succeeded in passing the 26th Constitutional Amendment. The purpose of this amendment, critics say, was to secure executive dominance over the judiciary. Since its passage, the government has largely succeeded in tightening its control.
When five judges challenged the transfer of three judges to the IHC, the apex court endorsed the executive’s plan. Now, once again, IHC judges have approached the Supreme Court.
Senior lawyers believe that the executive wants the SJC to be activated against Justice Jahangiri.
The role of six SC judges will be crucial in matters relating to IHC judges. Similarly, the role of three SJC members — CJP Yahya Afridi, Justice Syed Mansoor Ali Shah, and Justice Munib Akhtar — will also be decisive. Likewise, a three-member committee comprising Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, and Justice Muhammad Ali Mazhar will decide the fixation of their petitions.
There is a perception that neither the five IHC judges nor IHC Chief Justice Sardar Muhammad Sarfraz Dogar are in the good books of a certain section of the judiciary that currently holds sway in the SC.
The detailed judgment in the IHC judges’ transfer case will be important. Even the minority opinion may support the stance of the five IHC judges.
