ISLAMABAD:
Legal minds are in shock over Islamabad High Court’s unprecedented development wherein Justice Tariq Jahangiri has been excluded from next three days roster.
Though the division bench led by IHC Chief Justice Sarfraz Dogar is yet to issue written order in Justice Jahangiri case, there are reports that he has been restrained from judicial work.
The situation will clear after going through the written order. However, it is clear from new roster that Justice Jahangiri is not part of any single or division bench in 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 can not be restrained from judicial work through a judicial order as it will invite anarchy in the judiciary.
Former Sindh High Court Bar Association president Salahuddin Ahmed says that it is hard to imagine an order more blatantly illegal or an order more obviously dripping with bias.
“Justice Jahangiri was a petitioner in the SC against CJ Dogar’s transfer to the IHC. Both the Judges Code of Conduct and basic judicial ethics dictated that CJ Dogar could not have sat on a bench hearing the petition against Jahangiri J. But he did”
Salahuddin further states that the SC 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 CJ Dogar & Azam J had obviously neither read the judgment nor Article 199″
He also said that the SC 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 the bench had probably not read that judgment either.
“The cancellation of the allegedly fake degree of Justice Jahangiri (suddenly discovered by the Karachi University after 33-years following the 6-Judges letter) had already been suspended by the Sindh High Court. But the IHC bench had evidently not read those orders (or the hundreds of press reports about them) either”
Salahuddin Ahmed said that perhaps only the bench can explain why an old petition was suddenly fixed and an interim order practically suspending a judge who has been serving for 5 years was passed without even bothering to issue notice or hearing him. It is a day of shame for not just the Islamabad High Court but for every member of the judiciary who have quietly sat back and allowed this state of affairs to arise”
Faisal Siddiqi advocate said that the virtual suspension of Justice Tariq Jahangiri is as unconstitutional and as reckless an act as General Musharraff’s suspension of CJP Iftikhar Chaudhry. CJ Dogar is walking in a dictators footsteps. But the entire responsibility and onus lies with CJP Yahya Afridi – only he can stop the complete anarchy at the IHC”, he adds.
Former additional attorney general Tariq Mahmood Khokhar says that this is a flagrant violation of the Supreme Court judgement 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 Supreme Judicial Council.
“The high court bench lacks competence to suspend or disable a high court judge against whom a reference is pending before the Supreme Judicial Council. Any such “purported suspension” is an assault on the security of tenure and judicial independence; it violates article 10A(right to fair trial and article 25 (equality before the law); the State of Pakistan has an obligation under international law against such suspensions; the high court has interfered with the exclusive jurisdiction of the Supreme Judicial Council which may constitute contempt under article 210(2) of the constitution”, says Khokhar.
Waqar Rana advocate said that it has already been held in Iftikhar Ch’s case as well as by the Privy Council that a judge cannot be suspended during proceedings on charges of misbehaviour against him. Even the Ordinance whereby the Supreme Judicial Council 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 malafide. The judge must file petition against the order”, Rana adds.
Barrister Asad Rahim Khan says it has been laid down as clear as day in Iftikhar Chaudhry v. President of Pakistan that not even the Supreme Judicial Council 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”
Asad Rahim 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 adds.
Abdul Moiz Jaferii advocate says 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”
“Our argument is that this is a cause for the independence of the entire judiciary and a judge has been condemned unheard without due process”
“Meanwhile a particular kind of petitioner in person lawyer sues asking for justice jahangiri to stop working, doesn’t attend the hearing, yet the chief justice decides to stop the jduge from working despite the supreme court having said exactly that kind of stoppage as being illegal. This is the loha piglai deewar in action. A blowtorch to the judiciary. By insiders, for short term gain. At the cost of the collective loss of us all” says Jafferi.
Hafiz Ehsaan Khokhar stated that the recent suspension order concerning a sitting judge of the Islamabad High Court 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 emphasized that under Article 209 of the Constitution, the proper forum to address allegations against judges is the Supreme Judicial Council (SJC). Any action outside this constitutional path undermines judicial independence and due process. Judicial restraint should have been exercised before passing such an order, as institutional credibility depends on following the correct constitutional forum.
Hafiz Ehsaan Ahmad Khokhar, further observed that the SJC should immediately take up this matter and decide it at the earliest in order to avoid further controversy within the judiciary. Leaving such issues unresolved will only deepen divisions and weaken the institution. The SJC’s timely intervention is necessary to ensure that accountability and independence move forward in line with the Constitution.
Hafiz Ehsaan concluded that the judiciary must make a “good order” by adhering strictly to the constitutional mechanism, showing unity, and removing doubts about internal discord. Only through lawful resolution by the SJC can this unprecedented order be addressed properly, controversy avoided, and the public’s trust in the independence and impartiality of the judiciary preserved”
