ISLAMABAD: Justice Shahid Bilal Hasan, a member of the five-judge Constitutional Bench seized with a seniority dispute among the Islamabad High Court judges, on Thursday decried the tendency in the legal community to intertwine national politics with the bar politics.
The Supreme Court’s Constitutional Bench had taken up petitions filed by five judges of the IHC concerning the seniority dispute and the transfer of three judges to the IHC. Justice Muhammad Ali Mazhar headed the bench.
“This is unfortunate that the national politics has seeped into the bar politics,” regretted Justice Hasan, adding that this tendency was started by a political party now opposed to the present opposition. The judge bemoaned that this malaise had never been the practice in the past.
While pointing towards senior counsel Hamid Khan, who was representing the Lahore High Court Bar Association (LHCBA) and the Lahore Bar Association (LBA), Justice Hasan observed that it was to his knowledge that the presidents of both associations were staunch members of a political party and Mr Khan was also its senator.
Counsel says suo motu on ‘meddling’ still pending, claims it showed weakness of judiciary
He also wondered why the Islamabad High Court Bar Association had earlier withdrawn their petitions from the apex court.
Hamid Khan responded that when the judges could not stand extraneous pressures, how could the bars do that?
Referring to the letters written by IHC judges highlighting alleged meddling on the part of the intelligence agencies in the judicial affairs and subsequent hearings by the Supreme Court on a suo motu, the counsel emphasised that had the high court judges not shown courage by writing these letters, the matter would not have ever surfaced. But it is unfortunate that the suo motu case is still pending, which shows weakness on the part of the judiciary, he added.
The counsel said the Supreme Court should have decided the challenges to the 26th Amendment since it has become a roadblock in every other matter.
Hamid Khan also read out excerpts from the letter as well as the reports furnished by different high courts during the suo motu hearing on the letter by the IHC judges.
However, the constitutional bench repeatedly asked the counsel to stick to the constitutional disputes since the suo motu case was still pending before a larger bench. Justice Mazhar said the counsel should have filed an application seeking an early hearing of the suo motu case, if he was so concerned.
Earlier, senior counsel Muneer A. Malik, who was representing the five high court judges, closed his arguments while citing a statement by the five petitioner judges. The bench observed that the statement was irrelevant since the judges were already before the court through their petition.
In the statement, the five judges — Justice Mohsin Akhtar Kayani, Justice Tariq Mehmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, and Justice Saman Riaffat Imtiaz — stated that they stood up to be counted in defence of constitutionalism, the rule of law, and judicial independence.
As high court judges, they said they did not seek self-aggrandisement or any personal benefit from the outcome of these proceedings.
“And we have done so in full view of the code of conduct requiring judges not to indulge in avoidable litigation and public controversy. The actions impugned in this petition would not have been intolerable had they merely affected our seniority amongst our peers. They are abhorrent as they constitute commandeering of IHC and demolition of its independence and sanctity before our eyes,” the statement said.
The judges went on to say that they had taken administrative measures to stem the slide in judicial independence and the resultant weakening of fundamental rights and the rule of law. They said their petition was a measure of last resort, as per the statement.
The counsel also left certain points for the constitutional bench to ponder by questioning whether any established mode was available for the transfer of judges from one high court to another and that what should be the best mode to protect the independence of the judiciary as held in previous judgements, like the Sharaf Faridi, Malik Asad Ali and Al-Jehad cases.
The counsel emphasised that the judges would never be independent unless fully insulated from outside pressures, and if a judge who was 16th in seniority was transferred to another high court to become the senior-most judge, then it would destroy the concept of legitimate expectancy of the rest of the judges to become the chief justice.
The counsel also questioned if the constitutional court could take guidance from the practice prevalent in the civil services, but Justice Mazhar reminded that transfer in the civil service was one of the conditions for which no consent was needed.
Published in Dawn, May 16th, 2025
