ISLAMABAD: The Supreme Court adjourned for today (Tuesday) hearing in the identical petitions, challenging the transfer of judges to the Islamabad High Court (IHC) from other provinces and seniority of judges.A five-member constitutional bench — headed by Justice Muhammad Ali Mazhar — heard a set of identical petitions filed by six IHC judges against the transfer of judges.
The other members of the bench included Justice Naeem Akhtar Afghan, Justice Shahid Bilal Hassan, Justice Salahuddin Panhwar and Justice Shakeel Ahmed. The issue was also challenged by the Lahore High Court Bar Association (LHCBA) as well as Lahore Bar Association.
The petitioners include Justice Mohsin Akhtar Kiyani, Justice Tariq Mehmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, and Justice Saman Riffat Imtiaz. They had filed identical petitions with the Supreme Court under Article 184(3) of the Constitution, challenging the transfer of Justice Sarfaraz Dogar from the Lahore High Court, Justice Khadim Hussain Soomro from the Sindh High Court, and Justice Muhammad Asif from the Balochistan High Court.
On Monday, continuing his arguments, Faisal Siddiqui, counsel for the Karachi Bar Association, submitted that the Islamabad High Court was established under Article 175 of the Constitution. He said that while the law allowed for the appointment of judges from other provinces, it did not permit transfers.
Justice Mazhar questioned whether Siddiqui was asserting that judges from the other high courts could not be transferred to the Islamabad High Court. The lawyer replied that even if the transfer occurred, it would not be permanent. A judge returning after transfer does not need to retake oath, and even if he does, it would be a continuation of the previous oath, he said.
Justice Mazhar asked Siddiqui what will happen if, like in India, there was a unified seniority list for the high court judges.
Siddiqui argued that a unified seniority list will keep all judges informed of outcomes, and making a permanent transfer of a judge will amount to taking away powers from the Judicial Commission.
Justice Mazhar asked whether Article 200 had been nullified due to Article 175A and whether a judge’s transfer could no longer occur. The judge pointed out that in India, judges were transferred without their consent.
Siddiqui replied that India had a unified seniority list and such lists take decades to establish. Changing seniority lists overnight through an executive action is authoritarian,” Siddiqui contended.
Justice Mazhar reiterated that judges’ transfer involved opinions from four judicial forums including the chief justices concerned and the Chief Justice of Pakistan. “If any of them disapproves, the transfer doesn’t happen,” Justice Mazhar said, adding that the judiciary’s opinion was obtained at all four levels.
Siddiqui argued that the process was carried out with mala fide intent, and the judiciary was kept in dark about the seniority issue. Attorney General for Pakistan Mansoor Usman Awan submitted that under Article 200 of the Constitution, a judge’s transfers could be permanent or temporary adding that temporary transfers were mentioned in notifications and came with additional benefits, while permanent transfers included official accommodation.
The attorney general submitted that in time-bound transfers, judges return to their original high courts adding that if the transfer was permanent, the seat in the original high court became vacant.
The attorney general further submitted that judges transferred to Islamabad High Court were given official residences, but no additional allowances and their term of service remained intact.
He said no new oath was required upon transfer, as it was only needed at the time of appointment. The AG added that nothing was mentioned in the Third Schedule of the Constitution regarding a separate oath of Islamabad High Court judges but only high courts was mentioned.
Justice Naeem asked whether a new oath was required under Article 200. The Attorney General replied that no such thing was mentioned. Asked why the final transfer summary noted no need for a new oath and why seniority and oath issues were omitted from the initial summaries, the attorney general cited a Supreme Court ruling on seniority.
The attorney general submitted that out of five petitioner judges, only Justice Mohsin Akhtar Kayani was in the running for chief justice.
Justice Shakeel Ahmed asked the attorney general whether seniority and oath matters were to be decided by secretary law and asked if anyone had sought the secretary’s opinion. The court sought a response from the attorney general regarding the law secretary’s role.
Justice Naeem Akhtar Afghan asked how many contractual terms the law secretary had enjoyed. The attorney general replied that the summary sent to the prime minister for advice was of administrative nature and said he would respond to the court’s queries. The court then adjourned the hearing until Tuesday.
