- Advertisement -
ISLAMABAD, May 23 (APP):The Supreme Court’s constitutional bench Friday adjourned the hearing of Islamabad High Court (IHC) judges’ transfer and seniority case until Monday (May 26).
A five-member bench, headed by Justice Muhammad Ali Mazhar, conducted proceedings on Friday. During the hearing, lawyer Faisal Siddiqi continued his arguments, stating that in India, judges were transferred without their consent and their seniority remains intact.
He argued that while the appointment of judges was mandatory for the Judicial Commission, the President was not obligated to approve a transfer.
Justice Mazhar remarked that the President had constitutional authority over transfers and cannot be compelled to act. He advised the counsel to limit his arguments to the issue of judicial transfers.
Justice Naeem Akhtar Afghan noted that Siddiqi had earlier stated that the presidential power regarding transfers was not being challenged. Justice Salahuddin Panhwar added that the lawyer had said his focus would be on seniority.
Faisal Siddiqi contended that judicial transfers should be time-bound, especially since judges from high courts were appointed to the Federal Shariat Court for a three-year term. Justice Mazhar questioned the relevance of this, pointing
out that such appointments were considered promotions, while transfers between high courts were lateral moves.
The lawyer further argued that Justice Asif was an additional judge at the time of his transfer, and questioned how such a judge could be appointed to the IHC without a fresh evaluation by the Judicial Commission.
Faisal Siddiqi referenced the Al-Jehad case, citing former Attorney General Munir A. Malik’s arguments. Justice Mazhar asked what the Constitution defines as a Chief Justice and noted that acting chief justices were nominated in the Judicial Commission. He also inquired why the transfers should be time-bound, pointing out that neither Pakistani Constitution nor India’s provided for time-limited judicial transfers.
Justice Mazhar highlighted the example of a Sindh High Court Chief Justice who declined elevation to the Supreme Court and remained in his post, noting that Pakistan differed from India where judges refusing transfers must resign.
He emphasized the core issue: whether a transferred judge must take a new oath, and how that impacts seniority. Siddiqi argued that a judge would need to take a fresh oath after each transfer, which would effectively reset their service and seniority each time. This, the bench noted, could create multiple seniority lists and conflicts.
Justice Afghan questioned the implications of Article 200 of the Constitution, suggesting that allowing permanent appointments through transfer could render the Judicial Commission ineffective. He stated that a judge cannot hear or decide cases without taking an oath, and each oath nullified the previous one. Justice Mazhar noted that acting judges and transferred judges were not the same.
Justice Afghan also highlighted that Article 200 predated the formation of the IHC, which was governed by a separate Act stipulating 12 judges including the Chief Justice. He pointed out that while the Act allowed appointments from all provinces, it did not mention transfers, suggesting that had Parliament intended to allow transfers, it would have done so explicitly.
He referenced a Judicial Commission meeting held 10 days before Justice Sarfraz Dogar’s appointment, in which the name of a sessions judge from Balochistan, Raja Jawad Abbas, was considered but later dropped. This, he stated, raises questions for the Attorney General to answer in the next hearing.
The court subsequently adjourned the case until Monday, May 26. Karachi Bar’s counsel Faisal Siddiqi will resume his arguments at the next hearing.