ISLAMABAD: In an important development in the case of the transfer of three judges to the Islamabad High Court (IHC), five judges of the IHC filed a miscellaneous application in the Federal Constitutional Court (FCC) on Saturday, praying to the court to send the case back to the Supreme Court (SC) for the hearing.
The application was filed by IHC’s Justice Mohsin Akhtar Kayani, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, Justice Saman Rafat Imtiaz and Justice Tariq Mehmood Jahangiri.
As per the text of the application, the case could not be transferred to the FCC and that it should be sent back to the apex court. The constitutional court is due to take up the case for the hearing on November 24.
In the miscellaneous petition, the IHC judges asked the FCC to return the intra-court appeal to the SC, arguing that the matter constitutionally falls within the jurisdiction of the apex court.
The petition stated that the appeal was shifted to the FCC under the 27th Constitutional Amendment but contended that the amendment itself contradicted the Constitution.
In their application, the petitioners argued that the Constitution clearly outlined the legislature, executive, and judiciary as the three essential pillars of the state and delineated limits and powers for each.
The judges maintained that while Parliament holds the authority to amend the Constitution, such powers could not be exercised to abolish, restructure, or fundamentally weaken the judiciary, which forms an integral component of the constitutional framework.
They further asserted that several apex court judgments affirm the separation of powers and the protection of judicial independence, insisting that the appellate jurisdiction in such matters remained with the SC unless expressly provided otherwise without affecting the judiciary’s constitutional existence.
The petition stressed that transferring the appeal to the FCC on the basis of the 27th Amendment was legally flawed since the amendment itself was under challenge for being inconsistent with the Constitution’s basic structure.
With the new miscellaneous petition filed, the FCC is now expected to determine whether it can proceed with the appeal or whether the matter must be returned to the Supreme Court for adjudication.
On September 25, 2025, the SC had ruled that the transfers of judges to the IHC are valid and in line with the Constitution, dismissing petitions that challenged a February 2025 notification ordering the transfers.
In a detailed 55-page judgment, Justice Muhammad Ali Mazhar explained that transferring a judge from one high court to another does not equate to a new appointment.
The judge’s role and status remain unchanged, despite the change in location. “A transfer is simply a reallocation of an existing resource,” the ruling stated.
It was also noted that the necessary steps, including consultations with the Chief Justice of Pakistan and the Chief Justices of the respective High Courts, were followed as required by the Constitution.
The petitioners, including five IHC judges and several bar associations, had argued that the transfers would undermine judicial independence and seniority. They challenged the legality of transferring three judges from provincial high courts to the IHC.
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