The Constitutional Bank of the Supreme Court announced its verdict on Thursday in a case related to antiquity and transfer of the judges of the Superior Court of Islamabad (IHC), declaring that its transfers were not unconstitutional.
The bank, headed by Judge Muhammad Ali Mazhar and including Judges Naeem Akhtar Afghan, Shahid Bilal Hassan, Salahuddin Panhwar and Shakeel Ahmed, collected requests presented by five IHC judges, the Karachi lawyers association (KBA) and the IHC Association bar, among others.
In February, Judge Sardar Mohammad Sarfraz Dogar of the Superior Court of Lahore (LHC), Judge Khadim Hussain Soomro of the Superior Court of Sindh (SHC) and Judge Muhammad Asif of the Superior Court of Baluchistan (BHC) were transferred to the IHC.
The controversy focuses on the alteration of the seniority list of the judges after these transfers as Justice Dogar became the judge of Puisne, which raided the way for appointment as the president of the Supreme Court of IHC in functions after the elevation of Judge Aamer Faooq to the SC.
Today’s trial was announced in a majority ruling of 3-2, with Afghan judges and Ahmed by dissiding.
In the short order, a copy of which is available with Dawn.comThe SC pointed out that “the transfer of a judge by the president of Pakistan through article 200 of the Constitution (permanently or temporarily) cannot be interpreted as a new appointment.”
The order explained that the exercise of transfer powers by the President under article 200 of the Constitution was not regulated or without restrictions.
Rather, it was structured in a “four -level formula that states that no judge will be transferred, except with its consent and after the president’s consultation with the president of the president of Pakistan and the main justices of both superior courts.”
The short order emphasized that before exercising the power of the transfer, certain procedures and mechanisms incorporated should be followed and the decision was “within the sphere and the scope of the Judiciary and not within the domain of the executives.”
The short order added: “Therefore, for all purposes, the transfer of judges by the president of Pakistan (…) is within the framework of the Constitution and cannot be declared Ultra Vires. “
The judges also indicated that the terms and conditions of transfer, including seniority, should have been addressed and mentioned by the President at the time of issuing the notification of the transfer in terms of article 200 of the Constitution.
The judges also said that they partially forward the matter to the President, “without altering the notification of the transfer to determine the seniority after examining/examining the service record of the assignee judges as soon as possible, including the question of whether the transfer is permanently or temporarily.”
The Order concluded that the President determined the antiquity and transfer of judges through a notification/order and that the Justice to give would continue in his role as an interim president of the IHC until the antiquity and nature of the publication, permanent or temporary, of the transferred judges were determined by the President by notification/order.
Dissident order
In the dissident order, written by Judge Naeem Akhter Afghan, he said that the judges accepted constitutional requests.
The Order declared the contested notification with respect to the transfer of judges concerned as “null, null and without legal effect.”
Judge Afghan said: “The President has made the permanent transfer of three judges to IHC in incorrect exercise of discretion under clause (1) of article 200 of the Constitution.”
He added: “He has offended article 175 of the Constitution and has done the same redundant.”
The order also declared that the process of permanent transfer of three judges to the IHC was under the “concealment of relevant and material facts of the assignee judges”, adding that it was also “lacking significant, intentional and oriented to consensus consultation” with the main judges of the courts of the cusp and the senior courts.
In addition, he said that “the process for the permanent transfer of three judges to IHC has been completed in an unnecessary hurry.”
According to the judges, the proportional representation of the provinces in IHC could have achieved “making new appointments of judges of the provinces by the Judicial Commission of Pakistan under article 175a of the Constitution.”
The dissident note added: ” [notification] It is the violation of article 2, article 4 and article 25 of the Constitution and has undermined the independence of the Judiciary, due process and the principle of equality. “
