ISLAMABAD, Jun 17 (APP):Advocate Hamid Khan and Faisal Siddiqi on Tuesday concluded their arguments before the Constitutional Bench of the Supreme Court of Pakistan regarding transfer and seniority case of the judges in Islamabad High Court. The Court adjourned the hearing for tomorrow (Wednesday June 18) and Advocate Idrees Ashraf, representing founder of PTI, will begin his rebuttal arguments.
The proceedings was conducted by the five-member Constitutional Bench headed by Justice Muhammad Ali Mazhar.
Advocate Hamid Khan argued that the power to advise on judicial transfers lies with the Cabinet. Justice Muhammad Ali Mazhar pointed toward Article 48, noting that the term “Prime Minister” is also mentioned there, and questioned whether the Mustafa Impex ruling renders that term ineffective.
Justice Salahuddin Panhwar observed that the IHC Chief Justice’s decision didn’t highlight any illegality. However, Justice Mazhar remarked that since the decision of the IHC Chief Justice has been challenged, the petitioning judges and their lawyers should have pointed out its legal flaws.
Siddiqi cited the Attorney General’s position, stating that if a transfer is temporary, sub-clause (2) applies, while permanent transfers fall under sub-clause (1). He emphasized that an appointment is not valid until the summary is signed, and described Article 194 as the key to this case.
Justice Mazhar questioned the implications of a fresh oath on a judge’s previous service and whether it would affect their seniority. Siddiqi clarified that since the transfer is temporary, a fresh oath would not impact prior service. Once a judge returns, they would regain their original seniority. He reiterated that a judicial transfer is not a new appointment, nor can it be permanent. According to the presidential order, transfers can only be temporary.
Justice Mazhar remarked that the IHC judges did not address the transfer process in their representation. Siddiqi explained that the judges could only discuss seniority in the presence of the Chief Justice. He claimed that the Chief Justice of the IHC had fixed the seniority, which directly affected the judges involved.
When asked whether he would have filed a petition had the representation been accepted, Siddiqi responded affirmatively, stating they would still have challenged the transfer.
Justice Mazhar pointed out that the affected parties are the judges themselves and that the bench had already clarified that the main case concerns these judges. In their representation, IHC judges labeled the transferred judges as “deputationists,” a description which, he noted, could be seen as unfortunate.
Subsequently, the court adjourned the hearing on the judges’ seniority and transfer case until Wednesday. The court also decided to hear the Advocate General of Punjab on the same day. Senior lawyer Munir A. Malik stated they would respond separately to the Advocate General’s arguments.
