CB questions need for judges' transfers to IHC
Justice Naeem Akhtar Afghan, a member of the Constitutional Bench (CB) of the Supreme Court, on Monday questioned why judges from other high courts were transferred to the Islamabad High Court (IHC) instead of appointing judges from other provinces to fill the vacant posts.
The five-member bench, led by Justice Muhammad Ali Mazahar, was hearing multiple petitions challenging the "illegal" transfer of three judges from various high courts to the IHC, as well as the revision of the IHC judges seniority list following the transfers.
According to the written order of the proceedings, the bench issued notices to all respondents, including the transferred judges. The bench also issued notices to the Attorney General for Pakistan (AGP) and all the provincial as well as the Islamabad advocates general for further hearing on April 17.
The order noted that the office raised objections towards maintainability of the petitions, which would be taken up on the next date of hearing after serving notices to all respondents and law officers. The court also issued notice in all stay applications in the connected cases for Thursday.
The bench took up seven constitutional petitions under Article 184 (3) of the Constitution. The petitions called into question the notification of February 1, 2025, issued by the President of Pakistan under Article 200 of the Constitution for the transfer of Judges to IHC.
According to the written order, all the petitioners had sought the declaration that the notification was unconstitutional. The order further stated that one petition had been filed by five sitting IHC judges against upsetting their original seniority reckoned before the transfer. "Therefore, their petition will be treated as the lead petition and the rest will proceed conjointly," the order said.
During the proceedings, according to the written order, counsel for the Karachi Bar Association Faisal Siddiqi referred to an application in which it was requested that the February 3 seniority list be suspended.
It requested the bench to issue direction that major administrative decisions, including constitution of benches and fixation of cases, be undertaken by the acting Chief Justice Sarfraz Dogar only after substantive consultation with two senior-most judges of the IHC, during the pendency of the petition.
Muneer A Malik, who is representing the five IHC judges, sought interim relief, as a Judicial Commission of Pakistan (JCP) meeting was being on held on April 18 to consider the nomination of the permanent IHC chief justice. The bench adjourned the matter until Thursday – one day before the JCP meeting.
Malik said that even though an explicit provision for the transfer of judges from one high court to another high court was provided under the Article 200, but for exercising such powers by the president, there must be some justiciable reasons.
Malik stated that such discretionary powers should be exercised judiciously and transparently rather than being exercised in an unfettered or unbridled manner without any rhyme or reason. He added that the transferred judges were required to take a fresh oath before resuming their offices in the IHC.
The counsel said that the five judges had filed their representation before the IHC chief justice to resolve the issue of seniority, but it was rejected. "Therefore, the seniority list compiled as a result of dismissal of their representation is also liable to be set aside and the original seniority should be restored."
According to the counsel, the Article 200 should be read with other constitutional provisions, which talks about the independence of judiciary, separation of power and autonomy of high court.
Justice Mazahar noted that the chief justices of relevant high courts and the chief justice of Pakistan had given their consent to the transfer of judges. Malik replied that the notification was silent as to why the transfer of judges was made without highlighting the public interest.
He further said that they could not shut their eyes about the background wherein six IHC judges were continuously under attack by the executive since their letter written to Supreme Judicial Council (SJC) regarding the interference of the agencies in their judicial functions.
Justice Afghan noted that there was need to know about the total strength of the IHC judges and asked why judges were transferred to IHC, instead of making new appointments. He said that the IHC was established under an act of parliament, so what the act said about the transfer of judges.
Now the debate has started as to whether this bench will halt the JCP to postpone the consideration regarding the appointment of permanent IHC chief justice until final decision in this case. The notice has also been issued to JCP secretary as a respondent.
It is to be noted that Chief Justice of Pakistan Yahya Afridi has already expressed apprehension on the seniority of transferred judges. Although he is backing the transfer of different high courts judges to the IHC on linguistic basis.
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