IHC's order raises concerns

ISLAMABAD:

Lawyers are raising their voices over the Islamabad High Court's (IHC) order summoning the original record pertaining to the LLB degree of Justice Tariq Mehmood Jahangiri.

An IHC division bench, led by Chief Justice Sardar Muhammad Sarfraz Dogar, has issued a two-page order for its proceedings held on December 2.

It said the court "without touching the merits of the case at this stage" requisitioned from the University of Karachi through the Higher Education Commission (HEC) the original record pertaining to the LLB degree of Justice Tariq Mehmood Jahangiri.

It directed the competent authority of the HEC to secure and produce the record before the court, along with its verification status, through an authorized officer of the university fully conversant with the facts of the matter agitated in the writ petition.

"After perusal of the record and consideration of the maintainability of the instant writ petition, this court shall further proceed with the matter." It also directed the amicus curiae to address this court on the point of maintainability of the petition also at the next hearing on December 9.

Barrister Salahuddin Ahmed, who was counsel for Justice Jahangiri in the Sindh High Court, said the order passed by Bench-I of the IHC clearly violated the earlier Supreme Court order in this case, directing that the high court should first decide the office objections regarding maintainability of the petitions before proceeding further.

"Indeed, when viewed in light of the earlier interim order passed by the IHC Bench-I whereby Justice Jahangiri was restrained, ex parte, from performing functions (despite clear and categorical precedents of the Supreme Court stating this cannot be done), there could be a serious objection as to bias on the part of the members of this bench," he said.

Former additional attorney general Waqar Rana stated that the court could not summon the record before deciding the issue of maintainability, particularly when the Supreme Court had already ordered it.

"Moreover, the amicus curiae apparently belong to a party which is in power and there is a likelihood of bias, in light of the Wali Khan case (1976). He should have recused," said ex-AAGP Rana.

Advocate Faisal Siddiqi, commenting on the IHC order, said the order is a complete violation of the Supreme Court order because the apex court had directed the court to first decide the office's objections.

"It is obvious that the real purpose of this order is not only to render Justice Jahangiri's SHC petition infructuous, but also to embarrass him and to force him to resign," he stated.

A former attorney general for Pakistan, who wished not to be named, also expressed surprise that the IHC did not even issue notice to the petitioner.

"Undue haste, as the next date is 9/12. Ex parte decision on merit first and then maintainability will be examined. Also, whether the chief justice himself could hear this case?" he further questioned.

Recently, the Supreme Court ruled that a judge of the same court cannot issue any kind of writ nor take any 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 the 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 Supreme Court 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.