ISLAMABAD: Supreme Court Judge Justice Muhammad Ali Mazhar Monday remarked that every word and phrase of the Constitution was important, and it could not be interpreted in such a way that people begin to assume that the Supreme Court itself had amended the Constitution.
He was heading a five-member constitutional bench, hearing identical petitions filed by five judges of Islamabad High Court (IHC) against the transfer and seniority adjustments of judges from the other provinces.
Barrister Salahuddin, counsel for five judges, argued that the interpretation of Article 200 applied only to subsection (3).
He drew comparisons with the civil service rules, stating that when an employee was transferred from one department to another, he/she became junior in seniority.
Justice Mazhar, however, responded that there was no concept of deputation or absorption of judges between courts, unlike in the civil service where such mechanisms exist.
Barrister Salahuddin maintained that transferring a judge without their consent was contrary to the principle of justice and called the current case an “additional appointment”.
He contrasted it with the Indian system, where judges cannot refuse transfers and their consent is not taken.
In this respect, he cited S.P. Gupta case, where it was initially suggested that judges should be consulted, but later the Indian Supreme Court ruled otherwise.
He argued that in Pakistan, transfers occur with judges’ consent, and if they voluntarily agree, then any resulting loss in seniority does not amount to injustice.
A judge may consider whether a transfer improves their seniority (e.g., from 15th to 8th). He added that in India, seniority moves with the judge because their consent isn’t taken.
He cited recent Indian examples, like a senior judge from Delhi High Court being appointed as Chief Justice of Karnataka High Court.
Salahuddin emphasized that transfers should not be only for the transferred judge, but also for the sending and receiving High Courts, suggesting that other judges should also be given the transfer opportunities.
Advocate General Punjab Amjad Pervez filed a miscellaneous petition. Justice Salahuddin Panhwar inquired whether he had formally submitted any petition.
Pervez replied that he had presented a complete historical record of judges’ transfers from 1947 to 1976, and although they weren’t party to the main case, a 27-A notice had been issued.
Justice Mazhar responded that a 27-A notice was issued to make someone a party, and that Pervez should have given arguments after the attorney general.
He emphasized the importance of the notice, and said that since the registrar of the Lahore High Court had submitted comments, Pervez was indeed a central party to the case.
Justice Mazhar said the court would hear him after Barrister Salahuddin had completed his arguments.
Justice Mazhar asked whether there were judicial precedents stating that seniority should be counted from the date of appointment, and what happens to a judge’s seniority if transferred to another High Court.
Barrister Salahuddin replied that it needed to be considered whether the president was bound to act on the prime minister’s advice or he can exercise an independent judgment.
He referred to the Qazi Faez Isa case, where it was declared that the president must apply his own mind.
Justice Mazhar then questioned whether the president must apply an independent judgment even on recommendations from the Judicial Council, such as in the removal of a judge.
Salahuddin said for actions based on political advice, the president must apply his mind, but for Judicial Council recommendations (like dismissal), he must act upon them.
Justice Mazhar remarked that if a judge doesn’t consent, then the entire transfer process collapses. Even if the judge agrees, but the chief justice of the transferring or receiving High Court refuses, the transfer won’t happen,” Justice Mazhar remarked.
He further remarked that if the chief justice of Pakistan refuses, the transfer cannot be executed. Justice Mazhar remarked that every line of the Constitution had meaning and purpose adding that this issue had been created by the counsel.
“Every word of the Constitution is important and you can’t interpret it in a way that makes it look like the Supreme Court has amended it,” Justice Mazhar remarked.
Barrister Salahuddin, however, responded by referencing previous judgments, saying the Al-Jehad Trust case came earlier, followed by the Mustafa Impex case.
At this, Justice Mazhar noted that terms like “Prime Minister” and “Cabinet” had been part of the Constitution since 1985.
Barrister Salahuddin argued that in the appointment of the army chief, the cabinet plays no role. Justice Mazhar, however, countered with the example of the Supreme Court granting six months to parliament for legislation in the army chief’s extension case.
Salahuddin replied that the prime minister’s or Cabinet’s summary wasn’t issue in that case. The counsel pointed out that Justice Shakeel Ahmed had inquired about the Administrative Committee, which had recently been amended the Islamabad High Court.
Now, instead of the three most senior judges, the committee includes one senior and any two other judges. He criticized that the judges transferred just three days ago were included in the committee.
Justice Mazhar asked whether anyone had challenged the composition of the administrative committee. Salahuddin admitted that no one had challenged.
He noted that the IHC had recently drafted new rules in 2025, but the five petitioner judges were not even aware of them. At this, Justice Mazhar remarked that if five judges didn’t know, then the rules weren’t really made.” Salahuddin responded that the rules had indeed been gazetted. But Justice Mazhar reminded him that such rules must be approved by the Full Court.
