ISLAMABAD: The Supreme Court of Pakistan on Tuesday raised concerns over the use of “public interest” as a justification for the transfer of judges between high courts.
Justice Shahid Bilal Hassan questioned how the concept of public interest could be tied to the transfer of judges, pointing out that judges are bound to administer justice based on the law and Constitution, regardless of their location.
The remarks came during a hearing on petitions filed by five judges of the Islamabad High Court (IHC), challenging their inter-se seniority following their transfers.
The petitioners, including Justice Mohsin Akhtar Kayani, Justice Tariq Mehmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, and Justice Saman Rafat Imtiaz, urged the court to not recognize the three recently transferred judges as part of the IHC until they take a fresh oath as required under Article 194 and Schedule III of the Constitution.
Justice Hassan expressed concern over the frequent debates within legal circles regarding the reputation of judges, questioning whether these discussions could truly be considered to be in the public interest.
Senior counsel Muneer A. Malik, representing the petitioners, argued that the concept of public interest should be carefully defined when considering judicial transfers, particularly those carried out temporarily under Article 200, which he argued is consistent with the spirit of federalism.
Justice Hassan further questioned how long a judge could serve temporarily after being transferred. Malik proposed a two-year limit for such transfers, based on the country’s constitutional history. Justice Muhammad Ali Mazhar, however, noted that the Constitution does not specify a time limit for judges who voluntarily agree to transfers, suggesting that such transfers could, in theory, be for an unlimited period.
The issue of seniority remained central to the debate. Justice Mazhar clarified that a judge’s seniority could be affected by a transfer, as the transferred judge would lose their seniority and become junior to other judges in the new high court. Malik, however, argued that any transfer of a judge should be justified by the need to address case backlogs, such as in criminal cases, rather than for purely administrative reasons.
The court also discussed the broader implications of the Judicial Commission of Pakistan (JCP) and its powers under the Constitution. Malik argued that Article 200 must be interpreted in light of Article 2A, which enshrines judicial independence, cautioning against the erosion of JCP’s powers over judicial appointments.
He stressed that the powers of appointment should not be concentrated in the hands of the Chief Justice of Pakistan (CJP) or high court chiefs alone.
Justice Mazhar, however, reminded the counsel that the appointment process now requires a majority vote from all members of the JCP, not just the CJP. Malik, on the other hand, emphasized that judges should be considered for appointment within their home provinces to preserve the independence of provincial bars.
He also expressed concern about the impact of judges from the Islamabad High Court being appointed to permanent vacancies in the Sindh High Court.
The counsel will continue presenting arguments on Wednesday.
