ISLAMABAD: Former Islamabad Excessive Court docket (IHC) decide Tariq Mehmood Jahangiri moved the Federal Constitutional Court docket on Monday in opposition to his removing.
He was eliminated as an IHC decide in December final 12 months by President Asif Ali Zardari in compliance with an order by the excessive court docket, which declared that his elevation was “with out lawful authority”.
A division bench comprising IHC Chief Justice Sardar Muhammad Sarfraz Dogar and Justice Muhammad Azam Khan had introduced the decision on a plea difficult the validity of Jahangiri’s regulation diploma and, by extension, his appointment as a excessive court docket decide.
On Monday, Jahangiri filed a plea within the FCC by means of his lawyer, Salahuddin Ahmed. The federation of Pakistan, the president of Pakistan, the Judicial Fee of Pakistan, the parliamentary committee (defunct) for the appointment of judges to superior courts, the Increased Schooling Fee, the College of Karachi (KU) and lawyer Mian Dawood had been named as respondents. Dawood had approached the courts over Jahangiri’s appointment.
The petition, seen by Daybreakcontended that an “orchestrated marketing campaign” in opposition to Jahangiri had culminated within the removing of a constitutionally appointed excessive court docket decide. However, it continued, the event was not a “private tragedy” for Jahangiri.
“He’s glad with the general public service he has rendered and his adherence to the dictates of his conscience and his constitutional oath,” the plea stated, including that the event, nonetheless, was “a mortal blow to the independence of the judiciary as enshrined within the very preamble and Articles 2-A, 37 and 175 of the Structure”.
If not remedied, it “shall certainly function a grim lesson for serving and future judges”, the plea said.
The plea additional said that the IHC order that led to Jahangiri’s removing “proceeds on sure assumptions versus appreciating the report that was earlier than the court docket to find out whether or not” he met the constitutional {qualifications} to change into a decide.
“The impugned order incorrectly assumes that the petitioner was ‘not holding a sound LLB diploma, which is a prerequisite for enrollment as an advocate’,” the plea stated.
It additional quoted the IHC order as stating that when Jahangiri “couldn’t be thought-about as an advocate, then consequently he was not eligible for elevation as a decide of a excessive court docket by way of the necessities of Article 175-A of the Structure”.
However, the plea contended, the necessities for the appointment of a excessive court docket decide had been described in Article 193 of the Structure and never Article 175-A.
And the stated necessities didn’t checklist the LLB diploma as one of many necessities, it added.
Furthermore, from the date of the issuance of the IHC order until the passing of Jahangiri’s plea within the FCC, there had been no declaration by any competent authority or court docket of regulation that declared his diploma invalid, the petition additional said.
It stated KU, which awarded Jahangiri his regulation diploma, had taken the place earlier than the IHC that the diploma was declared invalid for the primary time in 2024.
“Consequently, the idea within the impugned order that the petitioner didn’t possess a sound diploma on the time of his elevation is totally opposite to the report that was positioned earlier than the court docket. At no stage, any get together earlier than the court docket asserted that Jahangiri’s diploma was invalid within the 12 months 2020 when he was thought-about for elevation.”
The plea additional contended that the IHC order relied on the college’s declaration that the diploma was invalid. However the declaration, the plea argued, had no authorized impact because it had been suspended by the Sindh Excessive Court docket.
And never simply that, the order “additionally proceeds to present the declaration a retrospective impact”.
The petition additional argued that the IHC division bench didn’t have the “jurisdiction to make any declarations relating to the validity of Jahangiri’s diploma. Consequently, it proceeded to make assumptions relating to the validity of his diploma.”
Furthermore, the bench additionally made assumptions relating to Jahangiri’s license as an advocate, the plea stated.
“It asserts that Jahangiri ‘couldn’t have been thought-about as an advocate’.”
However, it was a matter of report that the related bar council was current earlier than the IHC and repeatedly asserted that the petitioner was their licensee and no grievance had ever been acquired relating to his license.
“The representatives of the bar council urged the court docket to summon the report of the bar council… The bench, as an alternative of counting on the report of the bar council, deemed it acceptable to imagine that Jahangiri couldn’t have been thought-about as an advocate.”
The plea argued that the order, “being solely based mostly on assumptions and conjectures is unconstitutional, devoid of any constitutional foundation and coherence, and past the quo warranto jurisdiction of the excessive court docket”.
It additional stated: “Certainly, within the current case, it’s not even disputed that Jahangiri fulfilled the constitutional {qualifications} prescribed by Article 193 for appointment as a decide (specifically, that he has been an advocate of the excessive courts for greater than 10 years and is over the age of 45). Relatively, it’s alleged (which allegations are factually disputed) that the petitioner was wrongly awarded an LLB diploma (and therefore was (wrongly enrolled as an advocate of the excessive courts). Clearly, such factual disputes lie past the restricted purview of quo warranto proceedings and require a full-fledged trial.
“Furthermore, even KU proceedings by means of which the LLB diploma of Jahangiri was withdrawn/cancelled at present stand suspended.”
The plea additionally recalled that the IHC had not heard Jahangiri on the maintainability of the petition difficult his diploma and had over-ruled workplace objections raised on it, declaring it maintainable with out issuing a pre-admission discover to the previous IHC decide.
“It’s, in fact, well-settled that the overruling of workplace objections doesn’t preclude the court docket from inspecting the problem of maintainability subsequently nor does it prohibit a litigant from elevating the query of maintainability (particularly when he has not been heard on this regard). On this floor alone, the IHC order is liable to be put aside.”
The petition additionally contended the proceedings earlier than the division bench had been “vitiated by bias”, including that the IHC order was “legally and constitutionally unsustainable as Jahangiri had been denied due course of and a good trial assured beneath Article 10-A of the Structure”.
“Particularly, he was disadvantaged of a good trial and neutral tribunal; a possibility to be heard on authorized maintainability; and an inexpensive alternative to file a reply” to Dawood’s plea and deal with the deserves of that case, the plea said.
It additionally contended that the IHC lacked the jurisdiction to find out the validity of KU’s proceedings relating to Jahangiri.
“It was solely the SHC that might accomplish that and it had, already, suspended KU’s declaration cancelling/withdrawing Jahangiri’s diploma and LLB outcomes in addition to prior continuing,” it stated.
