ISLAMABAD: Former Islamabad High Court (IHC) judge Tariq Mehmood Jahangiri moved the Federal Constitutional Court on Monday against his removal.
He was removed as an IHC judge in December last year by President Asif Ali Zardari in compliance with an order by the high court, which declared that his elevation was “without lawful authority”.
A division bench comprising IHC Chief Justice Sardar Muhammad Sarfraz Dogar and Justice Muhammad Azam Khan had announced the verdict on a plea challenging the validity of Jahangiri’s law degree and, by extension, his appointment as a high court judge.
On Monday, Jahangiri filed a plea in the FCC through his lawyer, Salahuddin Ahmed. The federation of Pakistan, the president of Pakistan, the Judicial Commission of Pakistan, the parliamentary committee (defunct) for the appointment of judges to superior courts, the Higher Education Commission, the University of Karachi (KU) and lawyer Mian Dawood were named as respondents. Dawood had approached the courts over Jahangiri’s appointment.
The petition, seen by Dawn, contended that an “orchestrated campaign” against Jahangiri had culminated in the removal of a constitutionally appointed high court judge. But, it continued, the development was not a “personal tragedy” for Jahangiri.
“He is satisfied with the public service he has rendered and his adherence to the dictates of his conscience and his constitutional oath,” the plea said, adding that the development, however, was “a mortal blow to the independence of the judiciary as enshrined in the very preamble and Articles 2-A, 37 and 175 of the Constitution”.
If not remedied, it “shall surely serve as a grim lesson for serving and future judges”, the plea stated.
The plea further stated that the IHC order that led to Jahangiri’s removal “proceeds on certain assumptions as opposed to appreciating the record that was before the court to determine whether” he met the constitutional qualifications to become a judge.
“The impugned order incorrectly assumes that the petitioner was ‘not holding a valid LLB degree, which is a prerequisite for enrollment as an advocate’,” plea said.
It further quoted the IHC order as stating that when Jahangiri “could not be considered as an advocate, then consequently he was not eligible for elevation as a judge of a high court in terms of the requirements of Article 175-A of the Constitution“.
But, the plea contended, the requirements for the appointment of a high court judge were described in Article 193 of the Constitution and not Article 175-A.
And the said requirements did not list the LLB degree as one of the requirements, it added.
Moreover, from the date of the issuance of the IHC order till the passing of Jahangiri’s plea in the FCC, there had been no declaration by any competent authority or court of law that declared his degree invalid, the petition further stated.
It said KU, which awarded Jahangiri his law degree, had taken the position before the IHC that the degree was declared invalid for the first time in 2024.
“Consequently, the assumption in the impugned order that the petitioner did not possess a valid degree at the time of his elevation is completely contrary to the record that was placed before the court. At no stage, any party before the court asserted that Jahangiri’s degree was invalid in the year 2020 when he was considered for elevation.”
The plea further contended that IHC order relied on the university’s declaration that the degree was invalid. But the declaration, the plea argued, had no legal effect as it had been suspended by the Sindh High Court.
And not just that, the order “also proceeds to give the declaration a retrospective effect”.
The petition further argued that the IHC division bench did not have the “jurisdiction to make any declarations regarding the validity of Jahangiri’s degree. Consequently, it proceeded to make assumptions regarding the validity of his degree.”
Moreover, the bench also made assumptions regarding Jahangiri’s licence as an advocate, the plea said.
“It asserts that Jahangiri ‘could not have been considered as an advocate’.”
But, it was a matter of record that the relevant bar council was present before the IHC and repeatedly asserted that the petitioner was their licencee and no complaint had ever been received regarding the his licence.
“The representatives of the bar council urged the court to summon the record of the bar council … The bench, instead of relying on the record of the bar council, deemed it appropriate to assume that Jahangiri could not have been considered as an advocate.”
The plea argued that the order, “being solely based on assumptions and conjectures is unconstitutional, devoid of any constitutional basis and coherence, and beyond the quo warranto jurisdiction of the high court”.
It further said: “Indeed, in the present case, it is not even disputed that Jahangiri fulfilled the constitutional qualifications prescribed by Article 193 for appointment as a judge (namely, that he has been an advocate of the high courts for more than 10 years and is over the age of 45). Rather, it is alleged (which allegations are factually disputed) that the petitioner was wrongly awarded an LLB degree (and hence was wrongly enrolled as an advocate of the high courts). Clearly, such factual disputes lie beyond the limited purview of quo warranto proceedings and require a full-fledged trial.
“Moreover, even KU proceedings through which the LLB degree of Jahangiri was withdrawn/ cancelled presently stand suspended.”
The plea also recalled that the IHC had not heard Jahangiri on the maintainability of the petition challenging his degree and had over-ruled office objections raised on it, declaring it maintainable without issuing a pre-admission notice to the former IHC judge.
“It is, of course, well-settled that the overruling of office objections does not preclude the court from examining the issue of maintainability subsequently nor does it prohibit a litigant from raising the question of maintainability (especially when he has not been heard in this regard). On this ground alone, the IHC order is liable to be set aside.”
The petition also contended the proceedings before the division bench were “vitiated by bias”, adding that the IHC order was “legally and constitutionally unsustainable as Jahangiri had been denied due process and a fair trial guaranteed under Article 10-A of the Constitution”.
“In particular, he was deprived of a fair trial and impartial tribunal; an opportunity to be heard on legal maintainability; and a reasonable opportunity to file a reply” to Dawood’s plea and address the merits of that case, the plea stated.
It also contended that the IHC lacked the jurisdiction to determine the validity of KU’s proceedings regarding Jahangiri.
“It was only the SHC that could do so and it had, already, suspended KU’s declaration cancelling/ withdrawing Jahangiri’s degree and LLB results as well as prior proceeding,” it said.
