Seven Judges of the Superior Court of Islamabad (IHC) wrote a letter to the main judges (CJ) of the Supreme Court and the higher courts, urging them to take a position against the reports of a transferred judge appointed for the upper seat of the IHC and to resist such development.
Sunrise According to the reports, he reported last month that the judicial bureaucracy plans to bring to a judge of the Superior Court of Lahore (LHC) to lead the IHC after the elevation of the head of CJ. According to the sources, another judge of the Superior Court of Sindh (SHC) can also be transferred to the IHC.
Traditionally, the senior judge of Puisne of a superior court is appointed as the president of the Supreme Court, but the Judicial Commission of Pakistan (JCP) last year introduced new rules to avoid the criterion of seniority in the light of the 26th. The JCP proposed that the president of the Superior Court could be appointed between the panel of five senior judges.
Today’s letter, seen by Dawn.comIn the previous reports, the main judges of the Superior Court of Islamabad, Sindh and Lahore were addressed to CJP Yahya.
The letter was signed by the senior judge of IHC, Judge Mohsin Akhtar Kayani and Judges Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan, Arbab Muhammad Tahir, Saman Rafat Imtiaz and Miangul Hassan Aurengzeb.
The judges urged the four main judges to advise President Asif Ali Zardari who does not allow any transfer that would be informed since there was no conception of a unified federal judicial service in Pakistan under the existing scheme of the Constitution.
“The upper courts are independent and autonomous. Judges who are elevated to a particular Superior Court, provide oath, under article 194 of the Constitution, with respect to a particular province, or the effects of the IHC, with respect to the territory of the capital of Islamabad. Since the approval of the decimoctava amends the Constitution in 2010, and during the times of political democratic governments in Pakistan, there has been no precedents of permanent appointments for the superior courts through the invocation of article 200 of the Constitution, “he said The letter.
He said that the 26th Constitutional amendment had not institutionalized the transfer mechanism for the judges of the Superior Court from one to another, as originally proposed in the drafts of the amendment.
He said that despite an important review of the judicial framework under the 26th amendment, the legislature did not allow permanent transfers to constitutionalize as provided in the proposal.
“Article 200 did not undergo any change. The conception that each court is separate and autonomous, under the federalism system, has remained intact. ”
The letter said that it was reported that the purpose of the alleged transfer of the LHC judge was a consideration for the main position of the IHC, and added that “it simply cannot be under the Constitution.”
He argued that the transferred judge would need to provide a new oath under article 194 of the Constitution, to serve in a new superior court and, therefore, his age would be determined from the date of the oath with the purpose of serving in the IHC .
The letter pointed out that the Supreme Court had already argued that the age of a judge was determined from his oath date in the court superior to the one they were going to serve.
“Therefore, a transferred judge, required to provide a new oath, would be at the lower end of the list of seniority, on the date of said transfer, despite its previous service in another superior court. The transferred judge, as a result, can find that such a situation is unfortunate, which, in turn, can lead to friction, endangering the gentle functioning of the court. “
The letter were called the supposed purpose for the transfer of a JC Judge as a “fraud in the Constitution”, arguing that once the judges were appointed for a superior court, only the three highest judges of that court had to be considered for the post of the president of the President.
“It defeats the purpose of the Constitution and the appointment rules of 2024, if a judge, otherwise, is under ancient times in another superior court, is introduced as a transferred judge, which is considered and designated as the president of the Court for court for That is transferred, ”said the letter.
He continued: “In the event that such transfers from one superior court to another Superior Court are permanently allowed, particularly to take the position of the President of the Supreme Court, then this would be detrimental to the basic and fundamental conception that the Constitution supports , the independence of the Judiciary. This would provide an opportunity to select a judge of a superior court and present that judge in another superior court, with the purpose of exercising control over that superior court, such as the President of the Supreme Court.
“A superior court, with its own age between Se, would become susceptible to control by a judge, otherwise, oblivious to that court. This would have generalized consequences, particularly how the Judiciary sees its role under the Constitution, establishing perverse incentives for ingratibility for judges. “
The judges also assaulted the suggested reason for such a transfer to be one of the plots in the IHC cases or in the empty occupations for the judges, noting that the LHC figures had a worse show in both aspects.
“In summary, there is no publicly plausible public interest that was served when the transfer,” added the letter.
In addition, he argued that the appointment of a judge to a superior court was the prerogative of the JCP under the Constitution and if there were vacant seats, for which the eligible candidates were going to be considered by a collegiate body, that function of the function could not be taken by invoking article 200 of the Constitution.
The judges said that doing so would be “equivalent to usurping the role of the commission”, noting that the JCP recently had the opportunity to fill the four vacant seats in the IHC, but chose to fill two in its place after a lot of deliberation over a large number . of candidates.
“Completing other seats invoking article 200 of the Constitution would be nothing more than to shrink the mechanism constitutionally provided to designate the judges.
“It is for the above reasons, therefore, that the honorable main judges are requested that in their consultation with the President, by virtue of article 200 of the Constitution, it is categorically presented that such a permanent transfer of a judge to the IHC LO It would be against the spirit of the Constitution, detrimental to the independence of the Judiciary, the usurpation of the established and also totally unjustifiable judicial norms.
According to the sources, Judge Sardar Mohammad Sarfraz Dogar of the LHC is probably transferred to the IHC. Judge Dogar was appointed LHC judge on June 8, 2015.
After its transfer, Judge Dogar will become the highest judge of the IHC until the elevation of IHC CJ Aamer Faooq to the Supreme Court.
In the IHC, Judge Kayani is the senior judge of Puisne, who was appointed on December 23, 2015. Other judges in the age Judge Tahir and Judge Imtiaz.
Judge Dugar is being transferred under article 200 of the Constitution that says: “The President may transfer to a judge of a superior court of one court superior to another superior court, but no judge will be transferred, except with his consent and after the consultation by the president of the Supreme Court of Pakistan (CJP) and the president of the president of the Superior Courts ”.
According to the JCP rules, after its transfer, the name of Justice Dogar will be included in the panel for the president of the Supreme Court. Some IHC judges have already expressed their concerns to the CJP about the transfer. However, the sources affirmed that the formal process for the publication of the Justice Dogar had already begun.
