Constitutional Bench in its 3-2 majority judgment, dismisses pleas against transfer of IHC judges
Justices Afghan and Ahmed write their dissenting notes
ISLAMABAD: The Constitutional Bench of the Supreme Court on Thursday announced its verdict in the case of seniority and transfer of Islamabad High Court (IHC) judges, declaring that their transfers were not unconstitutional.
In the short order, the SC noted that “the transfer of a judge by the president of Pakistan by means of Article 200 of the Constitution (permanently or temporarily) cannot be construed as a fresh appointment.”
The five-member bench—headed by Justice Muhammad Ali Mazhar and comprising Justices Naeem Akhtar Afghan, Shahid Bilal Hassan, Salahuddin Panhwar and Shakeel Ahmed — heard the petitions filed by five IHC judges, the Karachi Bar Association (KBA), and the IHC Bar Association, among others.
The 3-2 majority judgment explained that the exercise of powers of transfer by the president under Article 200 of the Constitution was not unregulated or unfettered.
Justices Naeem Akhtar Afghan and Shakeel Ahmed wrote their dissenting notes.
It added, “The decision was structured on a “four-tier formula” that expounds that no judge shall be transferred except with his consent and after consultation by the president with the chief justice of Pakistan and the chief justices of both high courts.”
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 transfers sparked controversy over the judges’ seniority list, as after these transfers, Justice Dogar was made the senior puisne judge, which paved the way for his appointment as the acting IHC chief justice after Justice Aamer Farooq’s elevation to the SC.
The short order emphasized that before exercising the power of transfer, certain built-in procedures and mechanisms had to be followed, and the decision was “within the sphere and realm of judiciary and not within the domain of executives.”
The short order added, “Thus, for all intents and purposes, the transfer of judges by the president of Pakistan (…) is within the framework of the Constitution and cannot be declared ultra vires.”
The judges further noted that the terms and conditions of transfer, including seniority, should have been taken up and mentioned by the president at the time of issuing the notification of transfer in terms of Article 200 of the Constitution.
The judges also said that they partially remanded the matter to the president “without upsetting the notification of transfer to determine the seniority after examining/vetting the service record of the transferee judges as soon as possible, including the question of whether the transfer is on a permanent or temporary basis.”
The order concluded that the seniority and transfer of judges was determined by the president by means of a notification/order and that Justice Dogar would continue in his role as acting chief justice of the IHC till the seniority and nature of posting—permanent or temporary — of the transferred judges were determined by the president by means of notification/order.
Dissenting order
In his dissenting order, Justice Naeem Akhter Afghan declared the impugned notification regarding the transfer of concerned judges as “null, void, and of no legal effect.”
Justice Afghan said, “The permanent transfer of three judges to IHC has been made by the president in wrong exercise of discretion under Clause (1) of Article 200 of the Constitution.”
He added, “It has offended Article 175A of the Constitution and has made the same redundant.”
The order also stated that the permanent transfer process of three judges to the IHC was under the “concealment of relevant and material facts from the transferee judges,” adding that it was also “lacking meaningful, purposive, and consensus-oriented consultation” with the chief justices of the apex and high courts.
It further said that “the process for permanent transfer of three judges to IHC has been completed in an unnecessary haste.”
According to the judges, the proportionate representation of provinces in IHC could have been achieved by “making fresh appointments of judges from the provinces by the Judicial Commission of Pakistan under Article 175A of the Constitution.”
The dissenting note added, “It [notification] is violative of Article 2A, Article 4, and Article 25 of the Constitution, and it has undermined the independence of the judiciary, due process, and the principle of equality.”
