ISLAMABAD:
Despite facing increasing pressure from within their own institution, a group of Islamabad High Court judges continue to adopt an assertive and uncompromising approach in their fight for judicial independence.
With the passage of the 27th Constitutional Amendment, the threat of its transfer to other higher courts looms large. However, four IHC judges – Justice Mohsin Akhtar Kayani, Justice Ejaz Ishaq Khan, Justice Saman Rafat Imtiaz and Justice Babar Sattar – are undeterred.
In September, the IHC’s own five judges went to the Supreme Court to challenge several administrative orders of CJ Dogar. They also came to the courtroom to express their solidarity with Justice Jahangiri during the hearing of the petition against his suspension.
On Thursday, they challenged the 27th Amendment before the Supreme Court, which subsequently refused to consider their petition.
The judges then filed an application with the Federal Constitutional Court (FCC), requesting that their intrajudicial appeal (ICA) in the case of transfer of judges be returned to the Supreme Court and heard by it.
A larger FCC court, headed by Chief Justice Amin-ud-Din Khan, is scheduled to hear his ICA next week. The appeal aims to revoke the Supreme Court ruling that endorsed the transfer of three IHC judges.
In their application, the IHC judges have raised serious and fundamental questions about the very legitimacy of the FCC.
The legal community remains divided over the judges’ current strategy. A sector of lawyers fears that their petition against the 27th Amendment could push the executive to accelerate its plans against them.
After the amendment, it has become considerably easier for the government to remove them from office or transfer them to any other high court.
These lawyers argue that IHC judges must understand that they currently do not have the support of the current judicial leadership.
Additionally, some believe that by filing with the FCC, judges may be perceived as accepting the jurisdiction of the forum.
However, lawyer Salahuddin Ahmed, who represented them before the Supreme Court, rejected this interpretation.
“The request clearly states that they do not accept the jurisdiction of the FCC nor the transfer of the case from the Supreme Court to this court,” he said. “It is akin to filing a motion to remand a lawsuit in a court that lacks jurisdiction.”
Since May 2023, IHC judges have systematically raised their voices against the executive’s alleged interference in judicial proceedings. They first informed their then Chief Justice of the harassment and pressure directed at them and their families.
On May 2, 2023, the judges also met the then Chief Justice of Pakistan, Qazi Faez Isa. Later in March, they wrote a letter to the Supreme Judicial Council (SJC) seeking guidance on interference by state agencies in judicial functions.
However, his institution did not support his position. Allegations of misconduct were made against them and social media campaigns targeting them soon followed.
When Justice Yahya Afridi became Chief Justice of Pakistan, many hoped that the pressure and harassment they faced would come to an end, but this did not materialize.
Subsequently, in what was widely seen as an attempt to reassert control over the apex court, the government transferred three judges from the IHC. One of them, Justice Sardar Muhammad Sarfraz Dogar, later became the Chief Justice of the IHC.
It is also a fact that a section of the judiciary supported the government’s plan against the IHC judges, and the transfers were ultimately supported by the court.
Justice Tariq Mehmood Jahangiri is currently facing accusations of having a fake degree. He personally appeared before the Sindh High Court in this matter.
Meanwhile, an IHC bench headed by CJ Dogar, while hearing a quo warranto petition, restrained him from carrying out judicial work. The case is again set for hearing next week.
Recently, the SJC issued a notice to IHC Judge Ejaz Ishaq Khan over a complaint of misconduct. The FCC is also scheduled to hear from the ICA of judges next week.
It is also worth noting that Judge Arbab Tahir has distanced himself from the group and is not a party to their litigation. Justice Jahangiri also did not challenge the 27th Amendment before the Supreme Court.
Lawyer Abdul Moiz Jaferii claimed that IHC judges were the first to expose the “hybrid farce” as little more than a reckless struggle for power at any cost.
“Their fight for independence has exposed their own chief justice, his successor and their accomplices among both the Supreme Court judges and the executive,” he said.
“Judge Isa had an answer to all questions except when he was asked why he disappointed these IHC judges. The best he could say is that everything happened before his time.”
Jaferii added that the former Chief Justice attempted to mask the situation by seeking reports from other high courts which, through polite language and veiled references, narrated their own experiences of interference and overreach.
“By filing a petition against the 27th Amendment, the IHC judges have exposed yet another chief justice and yet another group that supports institutional overreach,” he said. “Their fight is not only for their own independence, but for the independence of the judiciary as a whole.”
Jaferii recalled the words of a former chief justice who once said, “Pity the nation,” then turned that sentiment into a poem serving his own agenda.
“One can only feel sorry for the nation where a judge says his parents were kidnapped and the chief justice responds: ‘Don’t worry, I’ve talked to them, they won’t do it again.'”
He said another judge finds recording devices in his dorm room, and instead of investigating the intrusion, the state decides his decades-old degree is fake and kidnaps a professor on his way to present a protest at the university.
“Meanwhile, the judicial hierarchy remains silent,” Jaferii said.
