The Supreme Court rarely hears petitions to disqualify a sitting judge, reopening the debate on judicial immunity
Justice Tariq Mehmood Jahangiri. Photo: IHC
ISLAMABAD:
A legal tool once widely used to oust lawmakers has now entered far more sensitive territory as the Islamabad High Court (IHC) prepares to hear a quo warranto petition challenging the eligibility of a sitting Supreme Court judge, a development that has revived the debate over judicial immunity and constitutional guarantees.
A division bench of the IHC, headed by Chief Justice Muhammad Sarfraz Dogar, will today (Monday) hear a petition seeking the disqualification of Justice Tariq Jahangiri over the allegation that he holds an invalid degree.
The case marks a rare moment in Pakistan’s judicial history when the jurisdiction of quo warranto, traditionally exercised against elected representatives and executive officials, is being tested against a member of the superior judiciary.
The case comes amid a long and contentious history of judicial activism following the restoration of judges in March 2009, where quo warranto was repeatedly invoked to remove lawmakers, prime ministers, heads of responsible institutions and civil servants.
Senior lawyers argue that these interventions weakened Parliament, a pattern that is now being reassessed as the same jurisdiction turns inward.
According to section 225 of the constitution, doubts cannot be raised about election disputes, except through an election petition. However, the Supreme Court disqualified many legislators by exercising quo warranto jurisdiction under Article 184(1).
Since the Lawyers’ Movement in 2007, different Chief Justices of Pakistan (CJPs) have adopted different approaches to judicial activism.
Senior lawyers agree that the exercise of quo warranto jurisdiction against lawmakers in the past weakened the parliament, with the Pakistan Muslim League-Nawaz (PML-N) and the Pakistan Peoples Party (PPP) emerging as the main victims. However, the situation has now changed after the adoption of the 27th constitutional amendment.
According to legal observers, the executive now enjoys greater dominance over the judiciary. They claim that even judges who are not in the government’s good books face pressure from within their own ranks.
Last week, the quo warranto petition against Justice Jahangiri was declared maintainable, after which the IHC issued a notice to its own judge for today (Monday).
It is expected that Judge Jahangiri himself will appear in court.
Barrister Zafarullah, who is serving as amicus curiae in the case, agreed with petitioner Mian Daud’s submissions, stating that the eligibility for appointment of a Supreme Court judge could be examined through a quo warranto and could not be examined under Article 209 of the Supreme Judicial Council (SJC).
However, he clarified that a writ of quo warranto and a writ of habeas corpus could be maintained against a judge of a high court, whereas mandamus, certiorari or prohibition could not be maintained against a judge of the Supreme Court.
On the other hand, a section of lawyers have raised strong objections to the maintenance of a quo warranto petition against a judge, arguing that if such a practice were to begin, Article 209 of the Constitution would become redundant.
A lawyer pointed out that the constitutional requirement for a county judge is a license with ten years of legal practice under Article 193 of the Constitution. While a degree is mandatory to obtain a license, it falls within the jurisdiction of the Bar Councils.
Recently, the SC ruled that a judge of the same court cannot issue any kind of writ 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 subpoena or take any action against another judge of the same court.” “Reliance is placed on the case of Muhammad Ikram Chaudhry,” said an 11-page detailed judgment written by Justice Jamal Khan Mandokhail while hearing a contempt case against SC Additional Registrar Justice Nazar Abbas for failing to arrange a case before a court in violation of court orders.
The order held that sub-section (5) of Article 199 of the Constitution by virtue of their constitutional office conferred immunity on judges of the SC 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 perform their duties smoothly and ensure 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.
