High Court to hear rare petition seeking disqualification of sitting judge, reopening debate on judicial immunity
Justice Tariq Mehmood Jahangiri. Photo Courtesy: IHC
ISLAMABAD:
A legal tool once used extensively to unseat lawmakers has now entered far more sensitive territory, as the Islamabad High Court (IHC) prepares to hear a quo warranto petition challenging the eligibility of a sitting high court judge, a development that has reignited debate over judicial immunity and constitutional safeguards.
A division bench of the IHC, headed by Chief Justice Muhammad Sarfraz Dogar, is scheduled to take up today (Monday) a petition seeking the disqualification of Justice Tariq Jahangiri on the allegation that he holds an invalid degree.
The case marks a rare moment in Pakistan’s legal history where the jurisdiction of quo warranto, traditionally exercised against elected representatives and executive office-holders, is being tested against a member of the superior judiciary.
The proceedings come against the backdrop of a long and contested history of judicial activism following the restoration of judges in March 2009, when quo warranto was repeatedly invoked to remove lawmakers, prime ministers, heads of accountability institutions and civil servants.
Senior lawyers argue that those interventions weakened parliament, a pattern now being re-examined as the same jurisdiction turns inward.
According to Article 225 of the Constitution, no election dispute can be called into question except through an election petition. However, the Supreme Court disqualified many lawmakers by exercising quo warranto jurisdiction under Article 184(3).
Since the Lawyers’ Movement of 2007, different chief justices of Pakistan (CJPs) have adopted varying approaches to judicial activism.
Senior lawyers agree that the exercise of quo warranto jurisdiction against lawmakers in the past weakened parliament, with Pakistan Muslim League-Nawaz (PML-N) and Pakistan Peoples Party (PPP) emerging as the main victims. However, the situation has now changed following the passage of the 27th Constitutional Amendment.
According to legal observers, the executive now enjoys greater dominance over the judiciary. They argue that even judges who are not in the government’s good books are facing pressure from within their own ranks.
Last week, the quo warranto petition against Justice Jahangiri was declared maintainable, following which the IHC issued a notice to its own judge for today (Monday).
It is expected that Justice Jahangiri himself will appear before the court.
Barrister Zafarullah, who is serving as amicus curiae in the case, endorsed the petitioner Mian Daud’s contentions, stating that the eligibility for appointment of a high court judge could be scrutinised through a writ of quo warranto and could not be examined under Article 209 before the Supreme Judicial Council (SJC).
He, however, clarified that a writ of quo warranto and a writ of habeas corpus were maintainable against a judge of a high court, whereas writs of mandamus, certiorari or prohibition were not maintainable against a high court judge.
On the other hand, a section of lawyers has raised strong objections to the maintainability of a quo warranto petition against a judge, arguing that if such a practice were to begin, Article 209 of the Constitution would become redundant.
One lawyer pointed out that the constitutional requirement for a high court judge is a licence with ten years of legal practice under Article 193 of the Constitution. While a degree is mandatory for obtaining a licence, it falls within the jurisdiction of the bar councils.
Recently, the SC ruled that a judge of the same court cannot issue any kind of writ or take action against another judge of the same court.
“The constitutional scheme of immunity to judges of the superior courts is to secure the independence of the judiciary, which is the command of Article 2A of the Constitution.”
“It is for this reason that a judge of the same court cannot issue any kind of writ nor take any action against another judge of the same court.” “Reliance in this behalf is placed on the case of Muhammad Ikram Chaudhry,” said an 11-page detailed judgment authored by Justice Jamal Khan Mandokhail while hearing a contempt case against SC Additional Registrar Judicial Nazar Abbas over his failure to fix a case before a bench in violation of judicial orders.
The order stated that, by virtue of holding constitutional office, sub-Article (5) of Article 199 of the Constitution granted immunity to judges of the SC and high courts for acts performed within their judicial and administrative capacity.
“The analogy for providing immunity is to prevent a judge of a court from misusing jurisdiction and authority by judging and controlling a fellow judge of the same court.
“It protects the judge against any interference from outside or within the institution. It safeguards the integrity and authority of the court and boosts the ability of judges to perform their duties smoothly, ensuring their decisions are not influenced by fear of being subjected to any adverse action.” “The concept of immunity is to preserve the authority of the judicial institution, which is crucial for the rule of law and for proper administration of justice.”
The court further observed that if a judge of a superior court cannot issue a writ to another judge of the same court, then a judge cannot be given the power to issue directions or initiate proceedings under Article 204(2) of the Constitution against a sitting judge of the same court and punish him for committing contempt of court.
“The allegation of misconduct against a judge of the Supreme Court or a high court can only be inquired into and dealt with under Article 209 of the Constitution by the Supreme Judicial Council (SJC),” the order said.
