ISLAMABAD:
Although sacked judge Tariq Mahmood Jahangiri retains the right to appeal to the newly formed Federal Constitutional Court (FCC) against the Islamabad High Court (IHC) that removed him from office, the prevailing circumstances suggest that his prospects of securing substantive relief in the near future are slim.
Since the passage of the 26th Constitutional Amendment last October, the judicial terrain has changed fundamentally as the executive branch has increasingly taken the reins to assert its weight over the judiciary in several ways. Plaintiffs with grievances against state institutions find it more difficult to obtain relief from the superior courts.
Moreover, matters have been further complicated by the 27th Amendment to the Constitution, which led to the creation of the FCC as the Supreme Court, with its first six judges appointed at the discretion of the sitting government.
Under the law, Mr. Jahangiri has 30 days to challenge the IHC Division Bench verdict before the FCC.
A lawyer reckons that while the fired judge has a strong case on several legal grounds, the likelihood of immediate help remains low in the current climate. In such circumstances, it may be wise to file the petition and wait for a more opportune time to press the case.
Meanwhile, Islamabad-based lawyer Waqas Ahmad says jurisprudence in the country has not been consistent and has instead evolved with changing circumstances and the political landscape. At times, the courts have adopted a pro-executive approach, while at other times case law has been more assertive, relief-oriented and inclined toward executive action, he noted.
Inconsistency in case law
Pakistan’s superior judiciary has long exhibited an uneven and shifting jurisprudence. At various times, courts have validated extra-constitutional acts that were subsequently declared unconstitutional, revealing sharp breaks rather than continuity in legal reasoning.
There was also a period when the superior judiciary was accused of encroaching on executive and legislative domains. In contrast, the prevailing view today is that the balance has tipped the other way as other institutions exert influence over the judiciary and judges are seen as aligned with executive thinking and occupy a dominant position.
The case of former Islamabad High Court judge Shaukat Aziz Siddiqui illustrates these fluctuations. During the tenure of former Chief Justices Saqib Nisar, Asif Saeed Khosa, Gulzar Ahmed and Umar Ata Bandial, Siddiqui repeatedly failed to secure relief.
However, this changed under former CJP Qazi Faez Isa when his removal was ultimately declared unconstitutional.
A similar turn is evident in the interpretation of the constitution’s article 62, paragraph 1, letter f). During CJ Nisar’s tenure, the disqualification of legislators under this provision was deemed to be for life. This position was later overturned under CJ Isa, marking another clear departure from previous case law.
Jahangiri was due to retire on 10 July 2027. He was appointed as an additional judge of the Islamabad High Court in December 2020 under the Pakistan Tehreek-e-Insaf (PTI) government. Prior to this, he served as Deputy Public Prosecutor under the PPP government and later held the post of Advocate General of the Islamabad Capital Territory (ICT) under the PML-N government.
There has also been a perception that Mr Jahangiri was not considered to be in the good books of the current regime. He was among the judges who signed a letter addressed to the Supreme Judicial Council (SJC), seeking guidance on alleged interference by agencies in judicial affairs.
Subsequently, he was appointed to an election tribunal to hear petitions relating to three National Assembly seats from Islamabad. In the course of these cases, however, the executive branch took exception and an amendment to the law was introduced to withdraw the cases from his court.
Under the prevailing circumstances, it appears difficult for Mr Jahangiri to secure relief as powerful quarters are seen as keen to use his case to set a precedent for other members of the judiciary.
Lawyers believe that the removal of a judge through a quo warranto has a chilling effect on the judiciary. However, it is also a fact that more than 100 judges were removed through the judgment of July 31, 2009.
Advocate Azhar Sadiq says the removal of Justice Tariq Jahangiri through a quo-warranto is without legal authority, coram non judice and void ab initio.
“Article 193 of the Constitution exhaustively prescribes the qualifications for appointment as a Judge of a High Court, requiring only that a person be a citizen of Pakistan and have either ten years’ standing as an advocate of a High Court or ten years’ service in the judiciary of Pakistan,” he notes.
“It is undisputed that Justice Jahangiri remains an enrolled advocate and that his license to practice has neither been suspended nor canceled by any competent Bar Council,” the lawyer said.
Azhar Sadiq further submits that the Constitution does not prescribe any additional academic qualification, nor does it disqualify a judge because of an alleged defect in an educational credential.
Consequently, the essential jurisdictional prerequisite for the issuance of a quowarranto—the absence of a constitutional qualification—was never satisfied.
Even otherwise, allegations of a “false degree”, provided they are correct without admission, do not constitute a disqualification under Article 193 and cannot legally form the basis for the removal of a sitting Supreme Court judge through writ jurisdiction.
Any question of misconduct, misrepresentation or disqualification of a judge falls exclusively within the constitutional domain of Article 209 and the Supreme Judicial Council and no other forum is competent to assume such jurisdiction.
The impugned judgment is therefore tantamount to usurpation of constitutional authority, undermines judicial independence and is tainted by inconsistencies of law; it is consequently a nullity and can be set aside for lack of jurisdiction and for being in direct violation of Article 193 and 209 of the Constitution, says Azhar Sadiq.
Lawyers are also debating the possible outcome of the complaint of misconduct filed by Tariq Jahangiri against IHC CJ Sardar Muhammad Sarfraz Dogar.
Barrister Salahuddin Ahmed, counsel for Jahangiri, states that the complaint against Judge Dogar before the SJC remains relevant.
The fate of the complaint is also crucial to Tariq Jahangiri’s case.
As for the options available, Abdul Moiz Jaferii lawyer says Tariq Jahangiri can legally file a contempt case against Karachi University for not disclosing how its decision to declare this degree invalid was suspended by the Sindh High Court.
“He can also appeal this decision to the Federal Constitutional Court, while contesting the notifications that followed the decision de-registering him.”
Jafferi further states that practically, the Jahangiri judiciary should focus on exposing this system and go ahead with the Supreme Judicial Council’s reference against Justice Dogar. “This was not a hearing in court. It was a chaotic execution and must be challenged as such. The regime’s ax men in robes must be exposed,” he adds.
