ISLAMABAD:
Although sacked judge Tariq Mahmood Jahangiri retains the right to appeal to the new Federal Constitutional Court (FCC) against the Islamabad High Court (IHC) order that removed him from office, current circumstances indicate that his chances of obtaining substantial relief in the near future are slim.
Since the passage of the 26th Constitutional Amendment in October last year, the judicial terrain has fundamentally changed as the executive increasingly takes the reins to assert its weight over the judiciary in various ways. Litigants with grievances against state institutions find it more difficult to obtain redress in higher courts.
Additionally, matters were further complicated by the 27th Constitutional Amendment, which led to the creation of the FCC as the supreme court, with its first six justices appointed at the discretion of the government of the day.
Under the law, Mr. Jahangiri has 30 days to challenge the IHC Division’s court verdict before the FCC.
One lawyer believes that even if the fired judge has a strong case on several legal grounds, the likelihood of immediate relief remains low in the current climate. In such circumstances, it may be prudent to file a motion and wait for a more opportune time to make your case.
Meanwhile, Islamabad-based lawyer Waqas Ahmad says jurisprudence in the country is not consistent and has instead evolved with changing circumstances and political landscape. Sometimes the courts have taken a pro-executive approach, while at other times the jurisprudence has been more assertive, more relief-oriented and inclined to oppose executive actions, he noted.
Inconsistency in case law
The Pakistani legal system has long displayed an uneven and changing jurisprudential record. At different times, courts have validated extraconstitutional actions that were later declared unconstitutional, revealing abrupt breaks rather than continuity in legal reasoning.
There was also a time when the higher judiciary was accused of encroaching on the executive and legislative domains. In contrast, the prevailing perception today is that the scales tip the other way, as other institutions exert influence over the judiciary and judges are seen as aligned with executive thinking, occupying a dominant position.
The case of former Islamabad High Court judge Shaukat Aziz Siddiqui illustrates these fluctuations. During the tenures of former Chief Justices Saqib Nisar, Asif Saeed Khosa, Gulzar Ahmed and Umar Ata Bandial, Siddiqui failed to get help on several occasions.
However, this changed under former CJP Qazi Faez Isa, when his impeachment was finally declared unconstitutional.
A similar reversal is evident in the interpretation of Article 62(1)(f) of the Constitution. During CJ Nisar’s tenure, the disqualification of legislators under this provision was considered to be for life. This position was subsequently overturned under the leadership of Chief Justice Isa, marking another clear departure from previous jurisprudence.
Jahangiri was scheduled to retire on July 10, 2027. He was appointed as an additional judge of the Islamabad High Court in December 2020 under the Pakistan Tehreek-e-Insaf (PTI) government. Prior to this, he served as Deputy Attorney General under the PPP government and then served as Attorney General for the Islamabad Capital Territory (ICT) under the PML-N government.
Some also had the impression that Mr. Jahangiri was not considered to be in the good graces of the current regime. He was among the judges who signed a letter to the Supreme Judicial Council (SJC), seeking guidance on allegations of agency interference in judicial matters.
Subsequently, he was appointed as a member of an election tribunal to hear petitions relating to three National Assembly seats in Islamabad. However, during these proceedings the executive objected and a legislative amendment was introduced to remove the cases from its court.
In the current circumstances, obtaining redress appears difficult for Mr Jahangiri, as powerful circles are seen as keen to use his case to set a precedent for other members of the judiciary.
Lawyers believe that the removal of a judge through a quo warranto order has a chilling effect on the judiciary. However, it is also true that more than 100 judges were dismissed following the judgment of July 31, 2009.
Lawyer Azhar Sadiq says the removal of Justice Tariq Jahangiri through a writ of quo warranto is without legal authority, coram non judice and void ab initio.
“Article 193 of the Constitution comprehensively prescribes the qualifications for appointment as a judge of a high court, requiring only that a person be a citizen of Pakistan and have either ten years of experience as an advocate in a high court or ten years of service in the Judicial Service of Pakistan,” it notes.
“It is beyond dispute that Justice Jahangiri continues to be a registered lawyer and his license to practice has neither been suspended nor canceled by any competent bar council,” the lawyer said.
Azhar Sadiq further states that the Constitution does not prescribe any additional academic qualification nor does it disqualify a judge on the basis of any alleged defect in a degree.
Therefore, the essential jurisdictional condition for the issuance of a writ of quo warranto – lack of constitutional qualification – has never been met.
Even otherwise, allegations relating to a ‘fake degree’, assuming them to be true without admission, do not amount to disqualification within the meaning of Article 193 and cannot legally form the basis for removal of a sitting High Court Judge through writ jurisdiction.
Any question of misconduct, misrepresentation or incapacity of a judge falls exclusively within the constitutional domain of Article 209 and the Supreme Judicial Council, and no other forum is competent to assume such jurisdiction.
The contested judgment therefore amounts to a usurpation of constitutional authority, undermines judicial independence and is tainted by bad faith in law; it is therefore void and liable to be annulled for lack of jurisdiction and for direct violation of articles 193 and 209 of the Constitution, specifies Azhar Sadiq.
The lawyers are also debating the possible outcome of the misconduct complaint filed by Tariq Jahangiri against IHC Chief Justice Sardar Muhammad Sarfraz Dogar.
Advocate Salahuddin Ahmed, Jahangiri’s lawyer, says the complaint against Justice Dogar before the SJC remains alive.
The fate of the complaint is also crucial to Tariq Jahangiri’s case.
Regarding the options available, Abdul Moiz Jaferii’s lawyer says that legally, Tariq Jahangiri can file contempt proceedings against the University of Karachi for not revealing how its decision to declare this degree invalid was stayed by the Sindh High Court.
“He can also appeal this decision to the Federal Constitutional Court while challenging the notifications that followed the decision which denotify him.”
Jafferi further states that in practice, Justice Jahangiri should focus on exposing this system and proceed with the Supreme Judicial Council referral against Justice Dogar. “This was not a court hearing. This was a chaotic execution that must be exposed as such. The regime’s henchmen in robes must be denounced,” he adds.
