Hope history will judge us kindly: IHC judges
The five Islamabad High Court (IHC) judges, who challenged the transfer of judges to the capital's high court and the subsequent change in the IHC judges' seniority list, have said they want to be remembered as those who stand up for the Constitution, rule of law and judicial independence
IHC judges — Justice Mohsin Akhtar Kayani, Justice Tariq Mehmood Jahangiri, Justice Sardar Ejaz Ishaq Khan, Justice Babar Sattar and Justice Saman Riffat Imtiaz — moved the Supreme Court after change in the IHC seniority list following transfer of three judges from provincial high courts to the IHC in Feb.
The petitioner judges submitted a statement through their counsel Munir A Malik to the five-member constitutional bench (CB) of the Supreme Court led by Justice Muhamad Ali Mazhar that heard their petition on Thursday. Interestingly, the bench did not allow Malik to read the statement in court.
The IHC judges stated that they are cognizant that as judges they will be judged by the people, by history and by God "in the hereafter".
"We hope and pray that we will be judged kindly and that history and the people of this country will remember that when the going got tough, we stood up to be counted, in defense of constitutionalism, rule of law and judicial independence," they said.
The judges said the petition might be in their names but it sought justice for the IHC and the citizens for whose benefit the court exists. They said as lawyers they received more than their fair share of professional recognition and financial reward that comes along.
"Adorning judicial robes meant accepting a pay cut. But it was an 'elevation' nevertheless, as it offered an opportunity to engage in public service and give back to a society that had given us much to be thankful for.
"We accepted our constitutional offices with humility, recognizing that dispensation of justice was a God-like function, to be exercised as a trust, and for which there will be accountability in this world and Hereafter," the statement said.
According to the judges, their oath required dispensation of justice without fear or favor, affection or ill-will. To discharge duties honestly and faithfully and in accordance with the Constitution and the law, they must strive for judicial independence, both in terms of institutional design and as a personal state of mind.
"It is our shared belief that a judge who forsakes his/her independence or that of his/her institution, can neither exercise judicial power as a trust, nor can uphold the sanctity and moral authority of the judiciary. And devoid of moral authority, judicial verdicts aren't worth the paper they are written on.
"We neither seek self-aggrandizement nor any personal benefit from the outcome of these proceedings. In filing this petition, we have been impelled by a sense of duty to uphold the Constitution and the oaths we have sworn," they added.
They said they had challenged the transfer and subsequent change in seniority list in view of their code of conduct requiring judges not to indulge in avoidable litigation and public controversy.
They clarified that the actions impugned in the petition would not have been intolerable had they merely affected our seniority amongst our peers. "They are abhorrent as they constitute commandeering of the IHC and demolition of its independence and sanctity before our eyes."
The judge said they shared a reading of the Constitution that defined a high court as the chief justice and all its judges, as opposed to the chief justice as a one-man-show. They said those who hold judicial office cannot abdicate responsibility for what happens on their watch.
"We have taken administrative measures to stem the slide in judicial independence and the resultant weakening of fundamental rights and rule of law. Such efforts having failed required the filing of this petition as a measure of last resort," they said.
Meanwhile, during hearing of their petition on Thursday, Justice Mazhar also stopped senior lawyer Hamid Khan from discussing a letter penned last year by six IHC judges to the then chief justice of Pakistan, saying that a suo motu notice and a reference on that matter had already been pending.
At the outset, Munir A Malik, the lawyer for the five judges started his arguments.
Malik argued that seniority of the judges was linked to the independence of the judiciary. He said under Article 175(3) of the Constitution, the judiciary had been separated from the executive.
Justice Mazhar inquired as to who would determine the seniority of the judges. Malik replied that the seniority would be determined by the chief justice, adding that in case of a disagreement, the aggrieved person could approach the competent court.
Justice Shahid Bilal noted that in the past, three judges of the Lahore High Court (LHC) had served as the chief justices of the IHC. Justice Naeem Akhtar Afghan mentioned that Justice Sardar Aslam of the LHC was elevated as the IHC chief justice.
Malik argued that Justice Sardar Aslam was not transferred, rather he was appointed to the IHC under Article 193. Justice Salahuddin Panhwar noted that this happened before the 18th Constitutional Amendment and formation of the Judicial Commission of Pakistan. "Then the President had the authority to appoint judges," he said.
Malik stated that the oath of each high court was different and a person took oath as a judge of a particular high court. Therefore, he added, a fresh oath by the transferred judges was required.
Justice Mazhar remarked that the Constitution was silent on whether a transferred judge would take a fresh oath. He pointed out that no ad hoc judge took a fresh oath, when he became a permanent judge. A judge takes a new oath only when he is elevated as the chief justice, he added.
Advocate Hamid Khan in his arguments said the Lahore High Court Bar Association (LHCBA) and the lawyers were very concerned about the transfer of judges.
He added that the transfer of judges to the IHC was mala fide.
"If the letters of six IHC judges are kept in view, it will be easy to understand why the judges came to IHC," he said, adding that judges' oaths were not just a formality but a constitutional obligation.
Justice Mazhar interrupted Hamid Khan, asking him to tell the court about the questions of law in the matter and not the letters. Khan replied that he was only presenting facts. Justice Mazhar remarked that the bench would not decide on the basis of facts but on the basis of law.
WITH INPUT FROM JEHANZEB ABBASI IN ISLAMABAD