ISLAMABAD:
Despite mounting pressure from their own institution, a group of Islamabad High Court (IHC) judges continue to adopt an assertive and uncompromising strategy in their fight for judicial independence.
With the passage of the 27th constitutional amendment, the threat of their transfer to other high courts looms large. Yet four IHC judges – Justice Mohsin Akhtar Kayani, Justice Ejaz Ishaq Khan, Justice Saman Rafat Imtiaz and Justice Babar Sattar – remain undeterred.
In September, the five IHC judges themselves came to the Supreme Court to challenge several administrative orders of CJ Dogar. They also came to the courtroom to express 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 declined to grant their petition.
The judges then filed an application with the Federal Constitutional Court (FCC) requesting that their intra-court appeal (ICA) in the judges’ transfer case be returned to and heard by the Supreme Court.
A larger bench of the FCC, headed by Chief Justice Amin-ud-Din Khan, is scheduled to hear their ICA next week. The appeal seeks to overturn the Supreme Court judgment that approved the transfer of three IHC judges.
In their application, the IHC judges have raised serious and fundamental questions about the legitimacy of the FCC itself.
The legal community remains divided over the judges’ current strategy. A section of lawyers fear that their petition against the 27th Amendment may push the executive branch to speed up 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 the IHC judges must understand that they currently enjoy no support from the current judicial leadership.
Likewise, some believe that by filing an application with the FCC, the judges may be construed as accepting the forum’s jurisdiction.
However, Barrister Salahuddin Ahmed – who represented them at the Supreme Court – rejected this interpretation.
“The filing clearly states that they do not accept the jurisdiction of the FCC or the transfer of the case from the Supreme Court to this court,” he said. “It is equivalent to filing an application to return a complaint to a court that lacks jurisdiction.”
Since May 2023, IHC judges have consistently raised their voices against alleged executive interference in judicial proceedings. They first informed their then Chief Justice about the harassment and pressure directed at them and their families.
On 2 May 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 government interference in judicial functions.
However, their institution did not support their position. Complaints of wrongdoing were filed against them and social media campaigns targeting them soon followed.
When Justice Yahya Afridi became the Chief Justice of Pakistan, many expected that the pressure and harassment they faced would end, but it did not.
Subsequently, in what was widely perceived as an attempt to restore control over the High Court, the government transferred three IHC judges. One of them, Justice Sardar Muhammad Sarfraz Dogar, later became IHC Chief Justice.
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 approved by the court.
Justice Tariq Mehmood Jahangiri is currently facing allegations of having a fake degree. He personally appeared before the Sindh High Court in the case.
Meanwhile, an IHC bench headed by CJ Dogar, while hearing a quo warranto petition, barred him from doing judicial work. The case has been fixed again for consideration 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 the judges’ ICA next week.
It is also worth noting that Judge Arbab Tahir has distanced himself from the group and is not a party to their lawsuits. Justice Jahangiri also did not challenge the 27th Amendment before the Supreme Court.
Lawyer Abdul Moiz Jaferii stated that the IHC judges were the first to expose the “hybrid charade” for what it was little more than a ruthless struggle for power at any cost.
“Their fight for independence has exposed their own Chief Justice, his successor and their aides among both Supreme Court judges and the executive,” he said.
“Justice Isa had an answer to every question except when asked why he failed these IHC judges. The best he could say was that it all happened before his time.”
Jaferii added that the former chief justice tried to mask the situation by seeking reports from other high courts who, through polite language and veiled references, recounted their own experiences of interference and abuse.
“In a petition against the 27th Amendment, the IHC judges have exposed yet another Chief Justice and yet another group supporting institutional abuse,” 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,” later turning the sentiment into a poem that serves his own agenda.
“You can only pity the nation where a judge says his parents were abducted and the chief judge says, ‘Don’t worry, I’ve spoken to them – they won’t do it again.’
He said where another judge finds recording devices in his bedroom, and instead of investigating the intrusion, the state decides his decades-old degree is fake and abducts a professor on his way to file a protest at the university.
“Meanwhile, the judicial hierarchy sits in silence,” Jaferii said.
