JCP again ignores IHC senior puisne judge

ISLAMABAD:

Once again, the Judicial Commission of Pakistan (JCP) has overlooked Islamabad High Court (IHC) senior puisne judge Mohsin Akhtar Kayani while filling vacant positions in the Supreme Court.

At its Tuesday meeting, only one JCP member, Justice Munib Akhtar, voted in favour of Kayani’s elevation to the SC. No other judicial member in the commission, Chief Justice of Pakistan (CJP) Yahya Afridi, Chief Justice Federal Constitutional Court Amin-ud-Din Khan, and Justice Hasan Azhar Rizvi supported the proposal.

There is no justification for not elevating Justice Kayani to the top court.

Meanwhile, Justice Miangul Hassan Aurangzeb, who is already working as an acting SC judge, was proposed to be appointed as a permanent judge at SC.

Earlier, CJP Afridi was interested in appointing Aurangzeb as the IHC chief justice, but the majority of the JCP members especially those belonging to the executive did not agree with the idea. Instead, they voted for the appointment of Justice Sardar Muhammad Sarfraz Dogar as the IHC CJ.

Justice Dogar was one of the three judges transferred to the IHC from other high courts in February.

A senior lawyer said Justice Miangul Hassan Augranzeb is an image-conscious judge and that was the reason why the government did not support his appointment as the IHC CJ.

The executive has gained dominance in the JCP after the passage of the 26th amendment.

The judicial members of the JCP have also not been able to evolve any strategy to reduce this dominant role of the executive in the commission.

Earlier, the JCP by a majority did not approve a proposal to appoint Justice Muhammad Kamran Khan Mulakhail as the chief justice of the Balochistan High Court (BHC).

However, the commission on Tuesday unanimously approved his nomination as the BHC CJ.

There is no justification as to why he was ignored then and but elevated to the same position this time. Interestingly, judicial members have also changed their position regarding him.

The IHC five judges who had written a letter last year against alleged interference by intelligence agencies in judicial functions have been facing a tough time. They have also failed to get support from their fellow judges.

First, the chief justices of high courts, as well as CJP Yahya Afridi endorsed the transfer of three judges from different high courts to the IHC. Since these transfers, the five judges, especially Justice Kayani, have been sidelined. The judges also approached the SC, but their grievances could not be redressed.

After the passage of the 27th Constitutional Amendment, these judges have limited space.

After the resignation of Justice Syed Mansoor Ali Shah and Justice Athar Minallah from the Supreme Court, there were reports that some IHC judges might resign too. However, they are resisting and have challenged the 27th Constitutional Amendment in the apex court.

Likewise, they have also objected to the constitutionality of the Federal Constitutional Court (FCC) in the judges’ transfer case. Their intra-court appeal has been rejected by the FCC on the basis of non-prosecution.

Now efforts are being made to compel Justice Tariq Mahmood Jahangiri to resign.

A division bench of the IHC led by Justice Sardar Muhammad Sarfraz Dogar, while ignoring an order of a larger bench of the SC, has sought the record of the Higher Education Commission (HEC) regarding the degree of Justice Jahangiri.

Earlier, the bench led by Justice Dogar had restrained Justice Jagangiri from judicial work. The interim order had been set aside by the SC. The SC had expected that the IHC division bench would first decide the maintainability of the quo warranto petition against Justice Jahangiri.

However, instead of deciding the objections, the IHC bench on Tuesday sought the HEC record. Even no notice has been issued to the respondent judge.

There are several questions that need to be addressed in this case.

First, the same matter is already pending in the Sindh High Court. Likewise, there is a need to determine the proper forum first. Some judges have already expressed the view that only the Supreme Judicial Council (SHC) can proceed against a judge and that no other forum can remove a judge.

The same matter is also pending in the Sindh High Court. The IHC has ignored this aspect and decided to proceed with the matter.

There is also a need to decide whether Justice Dogar can hear Justice Jahangiri’s case as Justice Jahangiri was among those five judges who challenged Justice Dogar’s transfer in the IHC. Earlier, Justice Jahangiri had also raised the question of bias in this matter.

It is a fact that the relationship of the five IHC judges with the executive is not cordial, but they are being given a tough time by their own fellow judges.