IHC judge fights ban on case hearings

Islamabad High Court (IHC) judge Tariq Mehmood Jahangiri has moved an application in the Supreme Court seeking early hearing of his constitutional petition against an IHC order restraining him from hearing cases. He has requested the apex court to hear the petition this week — between September 23 to September 26. On September 16, a division bench of the IHC comprising Chief Justice Sardar Muhammad Sarfraz Dogar and Justice Muhammad Azam Khan stopped Justice Jahangiri from performing his duties as it took up a petition accusing the judge of holding a dubious LLB degree Interestingly, the bench also sought assistance from Attorney General for Pakistan (AGP) Mansoor Awan on the question of whether the petition was maintainable while appointing senior lawyers Barrister Zafarullah Khan and Ashtar Ali Ausaf as amici curiae. The bench noted that until the Supreme Judicial Council (SJC) — the accountability forum, which has also been approached against Justice Jahangiri — decides the matter, the judge could not handle cases. On September 19, five IHC judges went to the SC in person to file separate constitutional petitions, making eleven different prayers including one seeking quashing of the IHC order barring Justice Jahangiri from judicial work. In his application submitted on September 22, Justice Jahangiri stated that it was a settled position in law that a restraining order could not be passed to stop a high court judge from performing his job. He said the case concerned important questions of law relating to the functioning judge of the high court and the independence of the judiciary, which were of grave concern to any jurisdiction. "The September 16 order opens the floodgates to litigation where any pending reference or complaint or petition against any judge, can permit a high court to prevent him from performing his function. "Hence, urgent intervention of this court is required to correct course and prevent such actions from straitjacketing the performance of judges of the high court." He said the order was passed without considering the bona fide of the person, Mian Daud Advocate, who filed a petition against him. In the absence of such bona fide, he said, the petition filed against him was not even maintainable. Hence, this determination must be made at the onset to close the door to any such mala fide litigation initiated against Constitutional functionaries. "The crucial decision to restrain a judge from performing his function was made without even hearing the counter position. The petitioner was never heard. "Hence, it is imperative that the objections to maintainability to the petition filed against the petitioner be considered at the very onset, to prevent the litigation from unnecessarily precluding the petitioner from dispensing justice in the high court that he serves in." The judge said he could only serve as a judge of the high court till a particular age, and time lost due to the operation of the impugned order could not be regained by him.

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