ISLAMABAD:
Lawyers are raising their voices over the Islamabad High Court’s (IHC) order summoning the original record regarding the LLB degree of Justice Tariq Mehmood Jahangiri.
An IHC division bench, headed by Chief Justice Sardar Muhammad Sarfraz Dogar, has issued a two-page order for its proceedings held on December 2.
It said the court “without prejudice to the merits of the case at this stage” requisitioned from the University of Karachi through the Higher Education Commission (HEC) the original record relating to the LLB degree of Justice Tariq Mehmood Jahangiri.
It directed the competent authority of the HEC to secure and produce the record before the court, along with its verification status, through an authorized officer of the university fully cognizant of the facts of the case raised in the writ petition.
“After perusing the record and considering the merits of the instant writ petition, this court shall proceed with the matter.” It also directed the amicus curiae to approach this court regarding maintainability of the petition also at the next hearing on December 9.
Barrister Salahuddin Ahmed, who was counsel for Justice Jahangiri in the Sindh High Court, said the order passed by the Bench-I of the IHC clearly violated the earlier Supreme Court order in this case, which directed the high court to first decide on the office’s objections regarding the maintainability of the petitions before proceeding.
“Thus, in view of the earlier interim order passed by the IHC Bench-I restraining Justice Jahangiri, ex parte, from performing functions (despite clear and categorical precedents of the Supreme Court saying that this cannot be done), there may be a serious objection of bias by the members of this bench,” he said.
Former Additional Attorney General Waqar Rana stated that the court could not summon the record before deciding on the issue of maintenance, especially when the Supreme Court had already ordered it.
“Besides, the amicus curiae apparently belongs to a party in power and there is a likelihood of bias in view of the Wali Khan case (1976). He should have resigned,” said former AAGP Rana.
Commenting on the IHC order, lawyer Faisal Siddiqi said the order is a complete violation of the Supreme Court order because the apex 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 wish to be named, also expressed surprise that the IHC did not even issue notice to the petitioner.
“Unreasonable rush as next date is 9/12. Ex parte decision on merits first and then maintainability will be explored. Also if the Chief Justice could hear this case himself?” he asked further.
Recently, the Supreme Court ruled that a judge of the same court cannot issue any type of subpoena or take action against another judge of the same court.
“The constitutional scheme of immunity against judges of superior courts is to ensure the independence of the judiciary which is the command of Article 2A of the Constitution.
“It is for this reason that a judge of the same court cannot issue any kind of subpoena or take action against another judge of the same court.
“On this behalf, reliance is placed on Muhammad Ikram Chaudhry’s case,” said an 11-page detailed judgment authored by Justice Jamal Khan Mandokhail while hearing the contempt case against SC Additional Registrar Justice Nazar Abbas for not arranging a case before a court in violation of court orders.
The order held that by virtue of their constitutional office, sub-section (5) of Article 199 of the Constitution conferred immunity on 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 a court from abusing jurisdiction and authority by judging and controlling a fellow judge of the same court.
“It protects the judge from any interference from outside or within the institution. It protects the integrity and authority of the court and strengthens the ability of judges to carry out their duties smoothly, ensuring that their decisions are not influenced by fear of being exposed to any adverse action.
“The concept of immunity is to preserve the authority of the judicial institution, which is essential to the rule of law and to the proper administration of justice.”
The court further observed that if a judge of a higher court cannot issue a summons to another judge of the same court, then a judge cannot be empowered to issue directions or initiate proceedings under Article 204(1) of the Constitution. 2, against a sitting judge of the same court and punish him for having committed contempt of court.
“The 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.
