Islamabad: The appropriate mechanism to determine the antiquity of the judges remained in discussion before the Constitutional Bank of the Supreme Court on Thursday, since it heard a dispute of seniority between judges of the Superior Court of Islamabad.
Directing the CB of five judges, Judge Muhammad Ali Mazhar questioned whether the authority to determine the age of the judges of the Superior Court must lie with the president or president of the president of Pakistan (CJP).
He also recalled how, under civil service procedures, when the officers were transferred from the surplus group to a different department, their age began from the lower part of the new department. He wondered if there was any rule or convention to end the antiquity of the judges or if it must be compared with the rules of the civil service.
The bank listened to a joint request presented by five judges of IHC – Judges Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan and Saman Rafat Imtiaz: begging that three transferred judges should not be treated as IHC Judges until they take an article of Fresh Oath. of the Constitution.
Judge Mazhar questions who should determine antiquity: President or CJP?
The main lawyer Muneer A. Malik, who represents the petitioners, argued that the consultation process for the transfer of the three IHC judges was no purpose, significant or consensus oriented in all relevant aspects. Consequently, he said, transfers must be attacked.
During the hearing, Judge Shahid Bilal Hassan recalled transfers prior to the IHC, noting that one of those judge transferred was even appointed president of the Supreme Court of the IHC. He also asked the council if the judges in those cases had lent a new oath after the transfer.
The lawyer replied that these transfers occurred after the IHC was restored in amendment 18, after its abolition for the SC Judgment of 2009 and the subsequent restoration through the Law of the Superior Court of Islamabad, 2010.
The lawyer said that, during the consultation process, those consulted, namely the CJP and the main judges of the superior courts in question, no information or data were presented to be presented why Judge Sardar Muhammad Sarfraz Dogar was selected or selected for the transfer to the IHC outside a group of 33 judges of the courts of Lahore, particularly when it was located in the third Antiquity.
“You suggest that there would be no evidence that no option was granted to other LHC judges to opt for the transfer to the IHC,” said Judge Salahuddin Panhwar.
The lawyer said that the appointment of Judge Dogar was not random, but premeditated, destined to place it in front of the IHC Puisne judge in seniority.
“You seem more aggrieved by the transfer of Judge Sarfraz Dogar,” Judge Panhwar observed.
When Judge Mazhar pointed out that one of the summaries had mentioned that the transferred judges would retain their age in the court superior to that they were transferred, the lawyer clarified that this communication was addressed to the prime minister, not to the CJP.
The lawyer argued that after recent developments in the rules that govern the appointment of judges by the Judicial Commission of Pakistan (JCP), the five main judges of a superior court now have a legitimate expectation to become the president of the Supreme Court. If a seventh judge is elevated on them, an order of Quo Guarano can be presented in the Supreme Court to challenge the appointment.
He argued that the consulted never discussed critical issues such as emoluments or the selection procedure. He cited the example of Judge Muhammad Asif of the Superior Court of Baluchistan, who served as an additional judge at the time of his transfer. In his case, the consent for the transfer was taken from the President of the Interim Supreme Court (ACJ).
When the lawyer cited the Al-Jihad trust case, in which it was argued that an ACJ can only perform routine tasks for a limited period and cannot recommend a judge for the elevation, Judge Mazhar pointed out that he made sense, since, at the time, the consultations were carried out between the CJP and the president in the absence of the JCP. Now, however, the JCP exists, and each member has the same vote.
The issue of antiquity is critical, emphasized the lawyer, because it is not simply personal satisfaction. He pointed out that there is currently no law to fix the age of the judges.
The audience was postponed until Wednesday (May 14).
Posted in Dawn, May 9, 2025
