ISLAMABAD:
Lawyers are raising their voices against the Islamabad High Court (IHC) order summoning the original case relating to the LLB degree of Justice Tariq Mehmood Jahangiri.
An IHC division bench, headed by Chief Justice Sardar Muhammad Sarfraz Dogar, issued a two-page order for its proceedings held on December 2.
He said the court “without touching the merits of the matter at this stage” requisitioned from the University of Karachi, through the Higher Education Commission (HEC), the original file relating to the LLB degree of Justice Tariq Mehmood Jahangiri.
It directed the competent authority of the HEC to obtain 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 raised in the writ petition.
“After reading the record and considering whether to maintain this writ petition, this court will proceed with the matter.” He also directed the amicus curiae to approach this court on the point of maintaining the petition also during the next hearing on December 9.
Advocate Salahuddin Ahmed, who was counsel to Justice Jahangiri at the Sindh High Court, said the order passed by Bench I of the IHC clearly violated the Supreme Court’s earlier order in the case, directing that the High Court should first rule on the office’s objections regarding the maintainability of the petitions before proceeding further.
“Indeed, in light of the earlier interim order passed by the IHC Supreme Court, whereby Justice Jahangiri was restrained, ex parte, from discharging his duties (despite clear and categorical precedents from the Supreme Court stating that 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 attorney general Waqar Rana said the court could not summon the case before deciding the issue of maintainability, especially when the Supreme Court had already ordered it.
“Moreover, the amicus curiae apparently belongs to a ruling party and there is a risk of bias, in light of the Wali Khan case (1976). He should have recused himself,” said Rana, ex-AAGP.
Lawyer Faisal Siddiqi, commenting on the IHC order, said that the order is a complete violation of the Supreme Court’s order as the apex court had directed the court to rule on the office’s objections first.
“It is obvious that the real purpose of this order is not only to render Justice Jahangiri’s petition to the SHC infructuous, but also to embarrass him and force him to resign,” he said.
A former Attorney General of Pakistan, who wished to remain anonymous, also expressed surprise that the IHC had not even issued a notice to the petitioner.
“Undue haste, since the next date is September 12. An ex parte decision on merits first, then on maintainability will be considered. 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 subpoena or take any action against another judge of the same court.
“The constitutional system of immunity for superior court judges is intended to ensure the independence of the judiciary, which is the commandment of Article 2A of the Constitution.
“It is for this reason that a judge of the same court cannot issue any summons or bring any action against another judge of the same court.
“Reliance in this sense is placed on the case of Muhammad Ikram Chaudhry,” said a detailed 11-page judgment written by Justice Jamal Khan Mandokhail while hearing the contempt case against SC Additional Judicial Registrar Nazar Abbas for his failure to dispose of a matter in court in violation of court orders.
The order clarified that by virtue of the exercise of constitutional functions, clause (5) of Article 199 of the Constitution grants immunity to judges of the Supreme Court and higher courts for acts done in their judicial and administrative capacity.
“The analogy to granting immunity is to prevent a judge of a court from abusing his jurisdiction and authority in judging and controlling another 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 strengthens the ability of judges to perform their functions without problem, ensuring that their decisions are not influenced by the fear of being subjected to adverse measures.
“The concept of immunity aims to preserve the authority of the judicial institution, which is crucial for the rule of law and for the proper administration of justice.”
The court further observed that if a judge of a superior court cannot issue a summons to another judge of the same court, then a judge cannot have 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 contempt of court.
“Allegations of misconduct against a judge of the Supreme Court or a high court can only be investigated and dealt with under Article 209 of the Constitution by the Supreme Judicial Council (SJC),” the order said.
