ISLAMABAD: The Supreme Court has been asked to declare that the President does not have unfettered and unbridled discretion to transfer judges from one high court to another, under Article 200(1) of the Constitution, without a manifest public interest.
Five judges of Islamabad High Court (IHC) namely, Justice Mohsin Akhtar Kayani, Justice Tariq Mahmood Jahangri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan and Justice Saman Rafat Imtiaz, on Thursday, approached the Supreme Court against the transfer of judges from three provincial high courts – Lahore, Sindh and Balochistan, and their seniority position.
They have filed a joint petition under Article 184(3) of the constitution citing the President, Federation, Judicial Commission of Pakistan, registrar of Supreme and High Court, except Khyber Pakhtunkhwa, and Justice Sardar Muhammad Sarfraz Dogar, Justice Khadim Hussain Soomro and Justice Muhammad Asif as respondents.
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The petitioners further prayed the apex court to declare that the President’s exercise of powers under Article 200(1) of the Constitution is to be read alongside Article 175A of the Constitution, without subsuming the powers of the JCP to appoint judges to a particular High Court. They also asked the Court to declare that the transfer notification is unconstitutional and illegal for not being able to disclose any public interest and is therefore liable to be set aside.
The petition raises vital questions as to the interference into the functioning of the IHC, through the invocation of powers, under clause (1) of Article 200 of the Constitution.
It raised questions; “Whether the issuance of the Transfer Notification, transferring judges from the other High Courts to the Islamabad High Court, was in public interest, or, instead, for extraneous reasons?
“Whether the Transfer Notification, Seniority List, Decision on Representation and Acting CJ Notification have been issued in violation of Article 200 of the Constitution by making permanent transfers to the Islamabad High Court, affecting the inter-se seniority of judges, when Article 200 only provides for transfers for limited periods of time?”
Three judges from other High Courts, namely, (1) Justice Sardar Muhammad Sarfraz Dogar, Judge, Lahore High Court, (2) Justice Khadim Hussain Soomro, Judge, High Court of Sindh, and (3) Justice Muhammad Asif, Judge, High Court of Balochistan, were transferred to the IHC on 1st February 2025, through a notification, issued under clause (1) of Article 200 of the Constitution.
None of the three transferred judges made an oath before the chief justice of IHC, to serve at the IHC. Their previous oaths were made before the relevant chief justices, only to serve at their respective High Courts.
Nonetheless, the very next day, on 2nd February 2025, which was a Sunday, a “Revised Approved Roster of Sitting” for the IHC’s benches was issued.
The petitioners raised questions of how the transfer power, under clause (1) of Article 200, has been used to punish and side-line the already serving judges at the IHC, and the steps hastily taken to disempower them, wresting administrative control out of their hands, and bestowing it on the newly-transferred judges.
They mentioned that former chief justice IHC Aamer Farooq has been selective in his borrowings from India. While he has asserted that, just like in India, there is a concept of unified seniority of judges at the High Courts – which is just not the case here in Pakistan – he failed to mention that taking a fresh oath at the new High Court is a necessary requirement in India.
In the alternative, they demanded to declare that respondents No 9-11 (Justice Dogar, Justice Soomro and Justice Asif) cannot be considered judges of the IHC until they take oath as justices of the IHC pursuant to Article 194 read together with Third Schedule of the Constitution.
They asked the court to declare that in line with the settled law pronounced by this Court in the case of Aslam Awan and Farrukh Irfan, the inter-se seniority of respondents No 9-11 shall be determined from the date they take oath as justices of the IHC and will consequently be lower in the seniority list to the petitioners.
They demanded that the Decision on Representation dated 08.02.2025 issued by the then chief justice of the IHC is illegal, unconstitutional and in violation of the settled law pronounced by this Court and consequently, the Decision on Representation and Seniority List dated 03.02.2025 are liable to be set aside;
“Declare that the JCP wrongfully considered a defective list of judges of the IHC in its meeting held on 10.02.2025 by wrongfully considering Respondent No. 9 for elevation to the Supreme Court of Pakistan. Declare the Acting CJ Notification dated 12.02.2025 issued by the President of Pakistan appointing Respondent No. 9 as the Acting Chief Justice of IHC contrary to the law as the said Respondent could not have been considered a judge of the IHC and consequently set aside the said Acting CJ Notification,” the petitioners demanded.
Copyright Business Recorder, 2025
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