SC hears pleas against judges transfer, serves notice to acting IHC CJ
A five-member constitutional bench of the Supreme Court on Monday issued notices to the Islamabad High Court (IHC) acting chief justice and its two other judges as it took up pleas against their recent transfer to the court and the subsequent changes in the seniority list.
A five-member bench — headed by Justice Muhammad Ali Mazhar and comprising Justices Naeem Akhtar Afghan, Shahid Bilal, Salahuddin Panhwar, and Shakeel Ahmed — took up petitions filed by five IHC judges, the Karachi Bar Association (KBA) and the IHC Bar Association.
In February, Justice Sardar Mohammad Sarfraz Dogar from the Lahore High Court (LHC), Justice Khadim Hussain Soomro from the Sindh High Court (SHC) and Justice Muhammad Asif from the Balochistan High Court (BHC) were transferred to the IHC.
The controversy centres around the alteration of the judges’ seniority list following these transfers as Justice Dogar was made the senior puisne judge.
Today, the five-member bench issued notices to the three transferred judges — namely IHC acting CJ Dogar, and justices Soomro and Asif.
However, the bench rejected the petitioners’ request to restrain the transferred judges from performing their duties.
A notice was also issued to Attorney General for Pakistan (AGP) Mansoor Usman Awan to represent the government in the case.
Subsequently, the hearing was adjourned till April 17 (Thursday).
President Asif Ali Zardari on February 1 had approved the transfer of one judge each from the high courts of Lahore, Balochistan and Sindh to the IHC, despite opposition from five of its judges. They had warned in a letter to top judges that any such move would “violate constitutional procedures and judicial norms”.
The five IHC judges — Justices Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan, and Saman Rafat Imtiaz — sought a court declaration that judges transferred to their court cannot be considered its permanent members until they take oath under Article 194 of the Constitution.
They also challenged the seniority list considered by the Judicial Commission of Pakistan (JCP) on Feb 10, arguing that it “wrongfully” included the transferred judges, leading to improper recommendations for elevation to the SC.
The petitioners demanded that the Feb 12 notification issued for the appointment of Justice Dogar as the IHC acting chief justice be set aside, asserting that he was “ineligible under constitutional provisions”.
The transfers were also opposed by various lawyers’ bodies in the federal capital and Karachi. In Punjab, there was a clear split in the stances of two lawyers’ groups, with some of their members seen as having certain political alignments.
The seniority saga
As Justice Dogar was made the IHC senior puisne judge following his transfer there from the LHC, his name had been sent to the JCP for consideration for elevation to the SC.
Days before Justice Dogar’s name was added, five judges of the IHC approached Chief Justice of Pakistan Yahya Afridi and then-IHC chief justice Aamer Farooq to reclaim their seniority.
According to the representation submitted by the judges, a judge takes an oath for the high court in which they are appointed. It further emphasised that according to the constitutional intent, a judge must take a fresh oath when transferred to another high court.
Based on this principle, the seniority of a judge transferred to another high court should be determined from the date of their new oath.
Four SC judges — senior puisne judge Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Ayesha A Malik and Justice Athar Minallah — had also raised similar concerns, saying the induction of judges who were beneficiaries of the 26th Amendment would weigh heavily on faltering public trust enjoyed by the institution.
The opposition PTI had also opposed the JCP meeting, contending that if such transfers resulted in a change of seniority, they may have a serious impact on the comity of judges.
More to follow