Disallowing pleas, SC refuses to restrain IHC acting CJ from performing his functions

ISLAMABAD: The Constitutional Bench of the Supreme Court turned down the pleas to restrain acting Chief Justice of Islamabad High Court (IHC) Sarfraz Dogar from performing his functions, and to set aside the order passed on the IHC judges’ seniority list.

A five-member Constitutional Bench, headed by Justice Muhammad Ali Mazhar, on Monday, heard the petitions of the IHC five judges, Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan, and Karachi, Lahore and Islamabad High Court Bar Associations.

The bench, after hearing the arguments, noted that the questions raised need consideration; therefore, issued notices to three judges, who were transferred to IHC, Attorney General for Pakistan and Advocate Generals of all the provinces, and the Islamabad, and Secretary Judicial Commission of Pakistan.

Three judges namely Justice Sardar Muhammad Sarfraz Dogar from Lahore High Court, Justice Khadim Hussain Soomro from Sindh High Court, and Justice Muhammad Asif from Balochistan High Court were transferred to the IHC on 1st February, 2025, through a notification, issued under clause (1) of Article 200 of the Constitution.

Munir A Malik, representing five judges of the IHC, argued 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 IHC namely, Justice Mohsin Akhtar Kayani, Justice Tariq Mahmood Jahangri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan and Justice Saman Rafat Imtiaz, on February 22, 2025 had approached the Supreme Court against the transfer of judges from three provincial High Courts – Lahore, Sindh and Balochistan, and their seniority position.

They filed a joint petition under Article 184(3) of the Constitution, citing president of Pakistan, federation, Judicial Commission of Pakistan, registrars of the Supreme Court and the High Courts, except Khyber Pakhtunkhwa, and Justice Dogar, Justice Soomro and Justice Asif as respondents.

Munir informed that five judges of the IHC had filed a representation before the then IHC CJ Aamer Farooq regarding their seniority, but it was dismissed. He requested the bench to set aside the order passed on IHC judges’ representation.

The counsel contended that there should have been some reasoning in judges’ transferring order. He said even though they accept transfer then the judges, who were transferred, should have taken a fresh oath of the IHC. The transfer should not be unlimited, and should not disturb the existing seniority of the IHC judges. The transferred judges’ seniority should remain intact in their original High Court.

Justice Mazhar remarked that the judges are not civil servants; therefore, the Civil Servants Act would not apply to them. He questioned where it is written that a judge after being transferred to another High Court has to take a fresh oath of that High Court.

Justice Naeem Afghan questioned when a judge takes oath of a particular High Court then would he be the judge of only that High Court? He further inquired what was the sanctioned strength of IHC and how many judges’ vacant posts were in the IHC at the time of transfer, and how many judges were required in the IHC, and why the judges were brought to the IHC from other High Courts and why not new appointment from different provinces were made in the IHC?

Munir contended that the Article 200 of the Constitution should be read with Article 175 and judges’ oath given in Third Schedule of the Constitution, and the guarantees given in the Constitution for the independence of judiciary.

Justice Mazhar said to transfer a judge from one High Court to another, the president needed the consent of the judge, who is to be transferred, chief justice of the High Court from where the judge is transferred and the CJ of High Court where the judge would be transferred, and also the chief justice of Pakistan. The president before transferring the judges under Article 200 had taken all the concerned stakeholders in loop, he added.

Munir maintained that under Article 200 (1), transfer of judges from one High Court to another is temporary and not permanent. However, Justice Mazhar remarked it was not written that the judge will be transferred temporarily. He said they will ask the AGP whether any additional allowances were paid to the judges, transferred to the IHC.

Justice Mazhar asked the IHC judges’ counsel: if the president under Article 200 is given power to transfer the judges then you want the Supreme Court to read down the constitution? He said there were many SC judgments which bar the judges from reading down or striking down the constitutional provisions.

Munir contended that Article 200 (1) does not confer absolute power to the president in light of the judgments in cases of Al-Jihad and Sharaf Faridi. Justice Mazhar said whether the president transferred the judges by exercising in suo moto power or a summary was moved to him in that regard.

Munir asked the Court to restrain the Judicial Commission of Pakistan, which will hold its meeting on 18th April to appoint the chief justices of four High Courts, including the IHC.

Justice Mazhar instead of granting relief, sought by the counsel, adjourned the hearing until April 17.

Copyright Business Recorder, 2025