ISLAMABAD:
Justice Muhammad Ali Mazhar, a member of the Supreme Court’s constitutional bench, remarked on Wednesday that three chief justices had given their consent for the judicial transfers in question. He added that Chief Justice Yahya Afridi had provided a detailed explanation of the federal structure of the Islamabad High Court (IHC) in this context.
Justice Mazhar made these observations while heading a five-member bench hearing a series of petitions challenging the inter-se seniority of five sitting judges, namely Justices Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan and Saman Rafat Imtiaz.
The five judges have jointly petitioned the apex court, arguing that the three transferred judges should not be considered IHC judges until they take a fresh oath under Article 194 of the Constitution, read in conjunction with Schedule III.
Justice Sardar Muhammad Sarfraz Dogar, Justice Khadim Hussain Soomro, and Justice Muhammad Asif were transferred from the high courts of Lahore, Sindh and Balochistan respectively on Feb 1 through a notification issued by the president of Pakistan under Article 200(1) of the Constitution.
During the hearing on Wednesday, senior lawyer Munir A Malik, representing the five judges, argued that the transfer of one judge is an executive act and therefore subject to judicial review.
He contended that the summaries for the transfer were sent to the president without cabinet approval, referencing the Supreme Court’s ruling in the Mustafa Impex case, which emphasized constitutional requirements for executive decisions.
Justice Naeem Akhtar Afghan remarked that the Mustafa Impex ruling nullified Section 16(2) of the Rules of Business, which, he said, was not directly related to the process of judges’ transfer.
Counsel Munir A Malik cited the Qazi Faez Isa presidential reference case, where the Supreme Court had emphasized the president’s obligation to apply an independent mind to judicial matters.
He said the judges transfer summaries reflected that the president and the prime minister gave their approval on the same day. He asserted that the judiciary was not consulted prior to issuing the transfer notifications and that the summaries were not routed through judiciary.
Justice Mazhar remarked that three chief justices had expressed consent for the transfers in question. He further noted that Chief Justice Yahya Afridi had elaborately discussed the federal structure of the IHC in this regard.
Munir A Malik argued that when the summary was sent there was no mention of oath-taking or seniority. He said after the approval of the summary, the notification stated that there was no need for new oath-taking.
Justice Mazhar remarked that Article 200 of the Constitutionwhich governs the transfer of judgeswas referenced in the notification. He noted that consultation among judges would have taken place. He said there was no mention of oath-taking in the notification.
Munir A Malik argued that the justification for the transfers mentioned proportional representation from Punjab. He pointed out that Justice Aamer Farooq, Justice Babar Sattar and Justice Ejaz Ishaq Khan, all having Punjab domicile, were already serving the IHC. He said the transfers were part of a pre-planned effort to dominate the IHC.
Later, the hearing of the case was adjourned until May 7.
