ISLAMABAD:
Lawyers are raising their voice over the Islamabad High Court (IHC) order seeking the original file pertaining to Justice Tariq Mehmood Jahangiri’s LLB degree.
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 case at this stage” seized 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 obtain and submit the file, along with its verification status, before the court through an authorized officer of the university fully conversant with the facts of the matter raised in the writ petition.
“After examining the record and considering the maintainability of the present writ petition, this court will proceed with the matter.” He also directed the amicus curiae to address this court on the point of maintainability of the petition also in the next hearing on December 9.
Advocate Salahuddin Ahmed, who was Justice Jahangiri’s counsel in the Sindh High Court, said the order passed by the IHC Bench I clearly violated the Supreme Court’s earlier order in this case, directing that the high court should first decide the office’s objections regarding maintainability of the petitions before proceeding.
“Indeed, when considered in the light of the earlier interim order passed by Bench I of the IHC by which Justice Jahangiri was restrained, ex parte, from discharging duties (despite clear and categorical precedents of the Supreme Court stating that this cannot be done), there could be a serious objection of bias on the part of the members of this bench,” he said.
Former Additional Solicitor General Waqar Rana claimed that the court could not summon the file before deciding the maintainability issue, particularly when the Supreme Court had already ordered it.
“Furthermore, the amicus curiae apparently belong to a party that is in power and there is a likelihood of bias, in light of the Wali Khan case (1976). He should have recused himself,” said former AAGP member Rana.
Advocate Faisal Siddiqi, commenting on the IHC order, said the order is a complete violation of the Supreme Court order because the high 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 force him to resign,” he said.
A former attorney general of Pakistan, who did not want to be named, also expressed surprise over the fact that the IHC had not even notified the petitioner.
“Undue haste as the next date is September 12. The ex parte decision will be examined first on merit and then maintainability. Also, could the Chief Justice himself hear this case?” he further questioned.
Recently, the Supreme Court ruled that a judge of the same court cannot issue any type of order or take any 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 the 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 stated that by virtue of holding a constitutional office, sub-section (5) of Article 199 of the Constitution granted immunity to judges of the Supreme Court and High Courts for acts done 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 any adverse action.
“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.
“An 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.
