Judges transfer case: AGP requests dismissal of IHC judges petition
Pakistan
Constitutional bench seeks Judicial Commission records as well
ISLAMABAD (Dunya News) - In the Supreme Court hearing concerning the transfer of Islamabad High Court (IHC) judges, the Attorney General concluded his arguments by requesting the court to dismiss the IHC judges’ petition on merit and declare the remaining petitions inadmissible.
A five-member bench, headed by Justice Muhammad Ali Mazhar, heard the case. The Attorney General informed the court that no new appointments were made in the IHC during the transfers and that the transferred judges did not need to take a fresh oath. He emphasized that the Supreme Court had previously ruled that seniority begins from the date of appointment.
Justice Shakeel Ahmed questioned why the Law Secretary clarified the matter of judges not taking a new oath. The Attorney General responded that the clarification aimed to remove ambiguity following prior approval.
He added that IHC Chief Justice Aamer Farooq had independently determined the judges’ seniority. Reports from the chief justices and registrars of four high courts did not raise any objections regarding the transfers.
Justice Mazhar remarked that the petitioners' lawyers did not address or even refer to the official representation and decision related to the case. When asked what the judges requested in their representation, the Attorney General said they sought clarity on seniority following the re-oath of transferred judges. Justice Mazhar noted that the full details had not been shared by the petitioners' counsel.
The Attorney General argued that Article 200 of the Constitution clearly outlines the transfer process and gives veto power to the judiciary, not the executive.
He stated that all relevant Chief Justices had consented to the transfers.
However, Justice Salahuddin disagreed, stating no Chief Justice had been consulted on the seniority issue. The Attorney General contended that determining seniority fell under the IHC Chief Justice’s jurisdiction.
Justice Naeem Akhtar Afghan questioned the criteria for choosing Justice Sarfraz Dogar for transfer, noting that although he was 15th in seniority in the Lahore High Court, he became first in the IHC. Justice Salahuddin maintained that once judges are transferred from other high courts, the IHC Chief Justice has no authority to decide their seniority. The Attorney General responded that since they were now part of the IHC, the Chief Justice was authorized.
Justice Afghan also noted that it remains unclear whether transferred judges belong to the IHC or their original courts.
Justice Shakeel asked for clarity on whether these were permanent transfers and, if so, whether they followed the procedure under Article 175-A of the Constitution. He raised concerns about who would evaluate the performance of judges transferred from Balochistan High Court—Balochistan or Islamabad?
The Attorney General noted that while Article 175-A was added via the 18th Amendment, Article 200 remained intact. He said it's not reasonable to argue that Article 200 no longer applies after the amendment.
Justice Shakeel stated that transfers under Article 200 must be in the public interest and asked what public interest was served in this case, as none was mentioned in the notification. Justice Mazhar added that safeguards are in place for judicial transfers.
Justice Mazhar observed that the language of the sub-sections is unclear, and the notification does not state whether the transfer is permanent or temporary. The Attorney General responded that no objections were raised about the nature of the transfers, and all judges consented to permanent transfers.
Judicial Commission Minutes Requested
The Supreme Court’s constitutional bench requested the minutes of Judicial Commission meetings. Justice Afghan asked for records of the meetings held on January 17 and February 10.
Justice Mazhar asked the Attorney General about the proceedings of those meetings. The Attorney General explained that in the January 17 meeting, two additional judges were appointed to the IHC, and in the February 10 meeting, Justice Aamer Farooq was appointed to the Supreme Court.
Justice Afghan asked whether Justice Dogar’s name appeared in the February 10 meeting’s list. The Attorney General confirmed that it did, but no discussion took place on his name.
The court adjourned the case until May 29, when senior lawyer Munir A. Malik will begin his rebuttal arguments.
