Islamabad: Judge Shakeel Ahmed, a member of the Constitutional Bank of the five Judges of the Supreme Court who listens to the seniority dispute between the judges, on Monday he questioned whether the Secretary of Law was competent to clarify in the final summary about the transfer that the judges should not take a new oath by publishing to the Superior Court of Islamabad.
“The real facts regarding antiquity remained hidden from the main judges during the consultation process?” Judge Ahmed asked, expressing concern that such anomalies had led to doubts and raised questions about the intention of bad trust.
The CB of five judges, headed by Judge Muhammad Ali Mazhar, had taken a joint request presented by five IHC judges: Judges Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan and Saman Rafat Imtiaz. The petition argues that three transferred judges should not be treated as IHC judges until they provide a new oath under article 194, read in conjunction with Annex III of the Constitution.
The main lawyer Faisal Siddiqi, who represents the former presidents of the Bar Association of the Superior Court of Islamabad, argued that the establishment of the IHC was implemented by virtue of article 175 of the Constitution and that the appointment of their judges under Law IHC referred only to the provinces. Even in cases of transfer, he said, the transfer is not permanent and there is no need for a new oath when a judge returns to his original court.
Judge Ahmed asks if the main judges remained dark in ancient times
The lawyer also said that the powers of the Judicial Commission of Pakistan (JCP) had been undermined in the current transfers system, contrary to the spirit of the Constitution.
Judge Ahmed observed that a unified seniority list of judges throughout the country could help solve such disputes. Siddiqi agreed, saying that the effects of judicial transfers would become clearer and more transparent with that list.
Pakistan Attorney General (AGP) Mansoor Usman Awan argued that the third schedule of the Constitution does not require a separate oath for IHC judges. He explained that the Constitution only refers to the “higher courts” for the oath, and the judges of IHC had lent the same oath as the transferred from other courts.
When Judge Naeem Akhtar Afghan asked if a new oath was needed under article 200 in case of transfer, the AGP replied that there was no such requirement under this article.
Judge Afghan also asked why the final summary of judge’s transfers did not mention an oath.
The AGP replied that there was an SC verdict on the antiquity of the judges, and the summary sent to the prime minister was of an administrative nature. He explained that according to article 200, the transfer of judges can be permanent or temporary. In cases of temporary transfer, judges receive additional benefits. In permanent transfers, government accommodation is provided. If the transfer is for a limited period, the judge finally returns to his original Superior Court.
The AGP clarified that if a judge is permanently transferred, his seat in the original Superior Court is vacant. Although government accommodation was provided to the judges transferred to the IHC, they did not receive any additional assignment. In addition, the transferred judges are not obliged to provide a new oath, he added.
Posted in Dawn, May 27, 2025
