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Business Recorder
4 hours ago
- Politics
- Business Recorder
Seniority of IHC judges: Justice Mansoor expresses reservation over presidential notification
ISLAMABAD: Justice Syed Mansoor Ali Shah expressed his reservation over a presidential notification determining seniority of the Islamabad High Court (IHC) judges, without consulting the Chief Justice of Pakistan and the Chief Justice of the High Courts. The Constitution Bench of the Supreme Court vide its short order on June 19 asked the President of Pakistan to determine the seniority and nature of transfer of the transferee judges, and held that transfer of judges under Article 200 is within the framework of the Constitution, and transfer (permanently or temporarily) cannot be construed as a fresh appointment. President Asif Ali Zardari through notification dated June 27 issued declared Sardar Muhammad Sarfraz Dogar as the senior-most judge of the IHC. He also notified that the transfer of Justice Dogar, Justice Soomro and Justice Asif to the IHC was made on a permanent basis. JCP nominates new CJs for high courts On the basis of the notification, the Judicial Commission of Pakistan (JCP) by majority nominated Justice Sarfraz Dogar as the chief justice of the IHC. Justice Mansoor, in his letter, which he wrote to the JCP secretary, a day before the Commission's meeting, raised serious constitutional concerns regarding the President determining the seniority of the IHC judges. In the letter, the senior puisne judge, who is now abroad, noted: 'With due deference, it appears that this action was taken without the constitutionally mandated consultation with the Chief Justice of Pakistan and the two respective Chief Justices of the High Courts under Article 200 of the Constitution.' He stated in his view, the requirement of consultation was a binding constitutional mandate and was not a matter of executive discretion that could be conveniently sidelined. The unilateral determination made without such consultation may lack legal validity, he pointed out. He added that while the Supreme Court had directed the president to decide on the seniority of transferred judges, such compliance must still operate within constitutional boundaries. Justice Mansoor further wrote; 'The presidential action in question appears to have been taken in undue haste, which raises concerns about the transparency and propriety of the process concerns that may merit constitutional scrutiny.' The most senior judge, further pointed out that Article 200 of the Constitution contemplates the temporary transfer of judges, not permanent relocation. 'Treating such a transfer as permanent — and accordingly fixing seniority on that basis — could raise serious constitutional questions, particularly where the foundational procedural safeguards appear to have been bypassed.' Calling for institutional caution, Justice Mansoor stressed that the matters raised in his letter warranted careful reflection before any further steps were taken. 'I wish to emphasise that these are preliminary concerns, and I remain fully respectful of the judicial process and the ultimate authority of the Supreme Court to conclusively settle these matters,' he stated. The letter also mentioned that the JCP was urged to delay its decision regarding the appointment of the IHC chief justice until the Supreme Court resolves the underlying constitutional issues. 'Proceeding further at this stage may risk unsettling foundational constitutional principles, including the rule of law, separation of powers, and judicial independence,' he warned. Justice Mansoor also requested that his letter be officially presented before the commission and its contents recorded in the meeting's minutes. He clarified that the presidential notification dated June 27, 2025, necessitated the letter, adding: 'All observations made in the letter are tentative, offered without prejudice, and subject to the final determination by the Supreme Court on the relevant constitutional issues currently under consideration.' Copyright Business Recorder, 2025
Express Tribune
6 days ago
- Politics
- Express Tribune
SC calls for review of Nikahnama form
Listen to article The Supreme Court has asked the federal government as well as the provincial governments to review the 'Nakahnama form' in order to make it user-friendly, effectively safeguarding the rights of the parties, particularly the women. A three-member bench of the apex court, led by Justice Syed Mansoor Ali Shah, noted that without reviewing the Nikahnama form as a whole, the positive step taken by the Punjab government might not achieve the intended goal of protecting the rights of women. The Nikahnama form has been prescribed in the Ordinance of 1961 and notified as part of the schedule of the Rules of 1961. However, the federal government is empowered to make rules in respect of the cantonment areas and the provincial governments in their respective areas of jurisdiction. According to a 22-page judgment, authored by Justice Athar Minallah in a family dispute case, the expressions used in the current Nikahnama form were ambiguous and, therefore, open to be misconstrued. The judgment said that the federal and the provincial governments might consider reviewing the Nikahnama form "to make it more user-friendly", so that "even a literate person of ordinary prudence does not have difficulty in understanding its requirements" and the columns. The judgment stressed the need for removing the "ambiguities likely to arise from the vague and ambiguous expressions used in the headings of the columns in the form currently prescribed" under the Ordinance of 1961, read with the Rules of 1961. "This would not only protect the rights of the parties in general and the women in particular but would also reduce litigation since a more user-friendly prescribed form of the Nikahnama will give rise to lesser disputes," the judgment said. The court noted that Nikah might also be solemnised by a person other than a Nikah registrar. However, it stated that the integrity, competence, knowledge and understanding of the Nikah registrars were crucial for effectively safeguarding the rights of the parties, particularly the women. In the province of Punjab, the judgment continued, the Act of 2015 imposed a statutory upon the Nikah registrar to accurately fill all the columns of the Nikahnama with specific answers of the bride and the groom. The court said that a breach of this statutory duty exposed a Nikah registrar to penal consequences ie imprisonment for up to one month and a Rs25,000 fine. It added the purpose was to protect women from exploitation and provide them with expeditious resolution of family disputes and ancillary matters. "The legislature [Punjab Assembly] was, therefore, conscious of the challenges faced by women in the context of exercising their rights relating to settling the terms and conditions of marriage," Justice Minallah wrote. "The Act of 2015, through which sub-sections (2A) and (4)(i) were inserted in Section 5 of the Ordinance of 1961, was definitely appreciable in securing the rights of the parties, particularly the women, keeping in view the social and cultural norms prevalent in many parts of the country," he said. The court also said that it was indeed a step in the right direction in order to reduce the number of disputes and consequently the volume of litigation as well. "However, we are of the opinion that without reviewing the prescribed form of the Nikahnama as a whole, particularly the expressions used in the headings of the columns, this positive step taken in the province of Punjab may not achieve its intended goal of protecting the rights of women in particular." The Nikah registrars, the judgment stated, had the most important role in ensuring that each party exercised her or his rights and that the entries recorded in a Nikahnama correctly reflected their intention. "It is a statutory duty of each Government to guide the Union Councils in setting out adequate qualifications and criteria for the granting of licences to persons for performing the functions of Nikah registrars," it stated. "Moreover, training and evaluation of performance of those who have been licensed would further guarantee that the social or cultural norms and influences do not prevail over the absolute rights bestowed upon women under the law," it added. "The Governments may also consider taking steps to ensure that persons of integrity and those who possess the required qualification and knowledge are granted licences and regular audits of the record relating to Nikahnamas maintained by the Union Councils are conducted." The court directed the Registrar Office to send copies of this judgment to the cabinet secretary, government of Pakistan, and the chief secretaries of the respective provinces so that they might place it before the competent authorities and forums for considering the observations. The court expected that effective steps would be taken to ensure safeguarding the rights of the parties to a marriage contract, particularly the bride, who might be more vulnerable on account of multiple factors, including the cultural and social norms and beliefs.
Express Tribune
20-06-2025
- Politics
- Express Tribune
Justice Shah warns against extending CB tenure
Senior puisne judge of the Supreme Court Justice Syed Mansoor Ali Shah has cautioned that the extension of the Constitutional Bench (CB) without resolving the core legal challenge surrounding it could further undermine the top court's legitimacy and deepen the ongoing institutional crisis. "The Commission must wait till the constitutionality of the 26th Constitutional Amendment is decided by this Court before addressing matters that flow directly from it. Proceeding with extensions or re-appointments to a Constitutional Bench whose very legal foundation is under serious constitutional challenge further deepens the institutional crisis and weakens the Court's legitimacy," Justice Shah wrote in a two-page letter addressed to the Secretary of the Judicial Commission of Pakistan (JCP). A copy of the letter was also shared with all JCP members. However, the commission, by majority vote, disregarded Justice Shah's concerns and extended the tenure of the Constitutional Bench until November 30. Justice Shah noted that his office had verbally informed the Secretary JCP on June 12 that he would not be available in Pakistan to attend the meeting scheduled for June 19. "One would have reasonably expected that due to non-availability of one of its Members, the meeting would be deferred — particularly in keeping with past practice, where meetings have been deferred due to the unavailability of Members representing the Executive. Additionally, the meeting falls in the summer vacations announced by the Court. However, it appears that the meeting is continuing as scheduled — perhaps due to the judiciary's minority position in the Commission," the letter read. Justice Shah also requested that his written submissions be included in the official minutes of the JCP meeting, as he would be unable to attend, even virtually. He stressed that the commission must recognise how the ongoing delay in resolving the constitutionality of the 26th Amendment is eroding the Court's credibility and shaking public confidence in its impartiality. "It is both surprising and regrettable that rather than first addressing the legitimacy of the 26th Amendment, the Commission is rather insensitively prioritising the matter of judicial extensions — an act which, in substance, continues the disputed scheme introduced by that very amendment," the letter states. Justice Shah also warned against the growing influence of the Executive over the Commission. "It is imperative that the Court's image is not allowed to drift under the control or convenience of the Executive, which now appears to wield disproportionate influence over the affairs of the JCP." Pending adjudication of constitutional challenges, he proposed that all judges of the Supreme Court be nominated to the Constitutional Bench on an interim basis. "Any selective inclusion without a transparent process or identifiable criteria is patently discriminatory and damaging to institutional harmony." Justice Shah stressed the urgent need to develop formal criteria for the selection of judges to the Constitutional Bench before any further constitution or expansion takes place. "The absence of objective standards renders past nominations vulnerable to the charge of cherry-picking. This ad-hocism has already cast a long shadow on the legitimacy of the Constitutional Bench, and continued exclusion of senior judges without reason only worsens that perception." Addressing another item on the JCP meeting's agendarelated to the framing of rules under Article 175A(20) of the Constitution — Justice Shah asserted that no policy decision should be made until the 26th Amendment's constitutionality is settled, as it is currently being challenged in a series of petitions. In closing, he urged that his concerns be taken seriously. "The strength of the judiciary rests on its credibility, its internal coherence, and its fidelity to constitutional principle — not on expediency or executive preference. If the Commission is to retain its institutional legitimacy, it must lead with integrity, transparency, and collective wisdom."
Express Tribune
07-06-2025
- Politics
- Express Tribune
Justice Mansoor Ali Shah becomes acting CJP in rare Eid day ceremony
Listen to article Senior-most judge of the Supreme Court, Justice Syed Mansoor Ali Shah, took oath as the Acting Chief Justice of Pakistan on Saturday, in an unprecedented ceremony held on Eid day at the Supreme Court's Lahore Registry. The oath was administered by Justice Ayesha A. Malik, marking a rare event where the swearing-in of the country's top judicial office took place outside the federal capital and on a public holiday. The ceremony was attended by Supreme Court judges Justice Shahid Waheed, Justice Aamer Farooq, Justice Shahid Bilal Hassan, and Justice Ali Baqar Najafi. Advocate General Punjab Amjad Pervez, along with several senior members of the legal fraternity, was also present. Justice Mansoor Ali Shah will serve as Acting Chief Justice until June 10, during the absence of Chief Justice Yahya Afridi, who is currently in Saudi Arabia to perform Hajj. Justice Isa is expected to resume his duties upon his return next week.
Express Tribune
02-06-2025
- Politics
- Express Tribune
Punishment must be proportionate: SC
The Supreme Court has ruled that proportionality must be applied with discipline, care and sensitivity to context, especially in cases involving fundamental rights and human dignity. In a service matter involving a sub-inspector, the apex court stressed that the principle of proportionality offers a structured framework for judicial review of administrative actions. The four-page judgment, authored by Justice Syed Mansoor Ali Shah, explained that the principle of proportionality provides a structured framework for judicial review of administrative actions. "Developed across various constitutional jurisdictions, it involves a four-step test: (i) the measure must pursue a legitimate aim; (ii) be suitable to achieve that aim; (iii) be necessary, in that no less restrictive alternative exists; and (iv) strike a fair balance between the measure's impact on individual rights and the public interest." This court has recently introduced and adopted this four-stage test to assess the legality and fairness of administrative and disciplinary decisions. Such a framework ensures that any interference with rights is justified, necessary, and lawful," reads the four-page order. The judgment was passed in a service matter where the Punjab Service Tribunal had partially allowed the appeal of a sub-inspector and modified the penalty from a two-stage to a one-stage reduction in pay through an order dated February 2, 2016. According to the tribunal, while an investigation had been conducted, the prosecution "failed to produce even a shred of evidence" to substantiate the allegations. A division bench of the apex court, led by Justice Shah, heard the sub-inspector's appeal against the tribunal's ruling. The order noted that despite these clear findings, the tribunal opted only to reduce the penalty rather than exonerate the petitioner. "It appears that the Tribunal relied, albeit implicitly, on the principle of proportionality, finding the original penalty disproportionate to the alleged misconduct. However, this application was both legally flawed and logically inconsistent with its own conclusion when no misconduct was established. The Tribunal failed to properly exercise its discretion under Section 5 of the Punjab Service Tribunals Act, 1974, which empowers it to confirm, set aside, vary, or modify impugned orders. While the Tribunal has authority to vary the punishment in appropriate cases, such discretion must be exercised judiciously grounded in the record, legal standards, and principles of fairness," the order stated. The court noted that judicial interference in disciplinary penalties is only warranted when the punishment is "arbitrary, perverse, or based on irrelevant considerations". "Once the Tribunal found that the allegations were wholly unsubstantiated, the only lawful outcome was to exonerate the petitioner." The judgment further elaborated that proportionality fosters a stable and systematic method for constitutional adjudication.
