High Court to hear rare petition seeking recusal of sitting judge and reopen debate on judicial immunity
Justice Tariq Mehmood Jahangiri. Photo courtesy: IHC
ISLAMABAD:
A legal tool once widely used to topple lawmakers has now entered much more sensitive territory, as the Islamabad High Court (IHC) prepares to hear a quo warranto petition challenging the eligibility of a sitting high court judge, a development that has reignited the debate over judicial immunity and constitutional safeguards.
A division of the IHC, headed by Chief Justice Muhammad Sarfraz Dogar, is scheduled to hear a petition today (Monday) seeking disqualification of Justice Tariq Jahangiri on the allegation that he holds an invalid title.
The case marks a rare moment in Pakistan’s legal history when quo warranto jurisdiction, traditionally exercised against elected representatives and executive office holders, is being tested against a member of the higher judiciary.
The process comes against the backdrop of a long and controversial history of judicial activism following the judges’ restoration in March 2009, when quo warranto was repeatedly invoked to remove lawmakers, prime ministers, heads of accountability institutions and public officials.
Senior lawyers argue that those interventions weakened parliament, a pattern that is now being re-examined as the jurisdiction itself turns inward.
According to article 225 of the Constitution, no electoral conflict can be questioned except through an electoral petition. However, the Supreme Court disqualified many legislators by exercising quo warranto jurisdiction under Article 184(3).
Since the Lawyers’ Movement of 2007, different Chief Justices of Pakistan (CJP) have taken different approaches towards judicial activism.
Senior lawyers agree that the exercise of quo warranto jurisdiction against lawmakers in the past weakened parliament, with the Pakistan Muslim League-Nawaz (PML-N) and the Pakistan People’s Party (PPP) being the main victims. However, the situation has changed now after the passage of the 27th Constitutional Amendment.
According to legal observers, the executive now enjoys greater dominance over the judiciary. They argue that even judges who are not in the government’s good graces face pressure from within their own ranks.
Last week, the quo warranto petition against Justice Jahangiri was declared maintainable, following which the IHC issued notice to its own judge today (Monday).
Justice Jahangiri himself is expected to appear in court.
Advocate Zafarullah, acting as amicus curiae in the case, supported petitioner Mian Daud’s arguments, stating that the eligibility for appointment of a high court judge could be examined through a writ of quo warranto and could not be examined under Article 209 before the Supreme Judicial Council (SJC).
However, he clarified that a writ of quo warranto and a writ of habeas corpus were maintainable against a judge of a superior court, while writs of mandamus, certiorari or prohibition were not maintainable against a judge of a superior court.
On the other hand, a section of lawyers have raised strong objections to the maintainability of a quo warranto petition against a judge, arguing that if such practice were to begin, Article 209 of the Constitution would become redundant.
A lawyer pointed out that the constitutional requirement to be a judge of a high court is a license with ten years of legal practice under Article 193 of the Constitution. While a degree is required to obtain a license, it falls within the jurisdiction of bar associations.
Recently, the TS ruled that a judge of the same court cannot issue any type of order or take action against another judge of the same court.
“The constitutional scheme of immunity of judges of high courts is aimed at ensuring the independence of the judiciary, which is the mandate of Article 2A of the Constitution.”
“It is for this reason that a judge of the same court cannot issue any type of order or take any action against another judge of the same court.” “Reliance in this name is reposed in the case of Muhammad Ikram Chaudhry,” said an 11-page detailed judgment written by Justice Jamal Khan Mandokhail while hearing a contempt case against Supreme Court Additional Judicial Registrar Nazar Abbas for failing to settle a case before a court in violation of court orders.
The order established that, by virtue of the exercise of constitutional offices, section 5) of article 199 of the Constitution granted immunity to the judges of the SC and the high courts for acts carried out within their judicial and administrative capacity.
“The analogy for granting immunity is to prevent a judge of one court from misusing his jurisdiction and authority in judging and controlling another judge of the same court.
“It protects the judge against any interference external or internal to the institution. It safeguards the integrity and authority of the court and increases the ability of judges to perform their duties smoothly, ensuring that their decisions are not influenced by the fear of being subjected to adverse actions.” “The concept of immunity is to preserve the authority of the judicial institution, which is crucial to the rule of law and the proper administration of justice.”
The court further observed that if a judge of a high court cannot issue an order 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.
“Allegation 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.
