The Supreme Court’s Constitutional Bench on Thursday released its detailed verdict in a case pertaining to the seniority and transfer of Islamabad High Court (IHC) judges, ruling that the president’s powers to transfer high court judges are independent but subject to certain conditions.
The Supreme Court’s larger Constitutional Bench was headed by Justice Muhammad Ali Mazhar and included Justices Naeem Akhtar Afghan, Justice Shahid Bilal Hassan, Justice Salahuddin Panhwar, and Justice Shakeel Ahmad.
“It is clearly articulated under Article 200 of the Constitution that the powers of the president for the transfer of a Judge of the high court from one high court to another high court is an independent Article in its application, but with some safety measures and safeguards and these powers are not dependent upon any other article of the Constitution,” read the 3-2 judgement.
In February this year, five judges of the IHC had moved the apex court under Article 184(3) of the Constitution against the appointment of Justice Sarfraz Dogar as the then-acting chief justice of IHC, as well as the transfer of high court judges.
The plea was filed byJustice Mohsin Akhtar Kiyani, Justice Tariq Mehmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan and Justice Saman Riffat Imtiaz.
The IHC judges had urged the apex court to declare that the president does not have unfettered and unbridled discretion to transfer judges from one high court to another, under Article 200(1) of the Constitution, without a manifest public interest, and in a manner that hampers the principles of independence of the judiciary and separation of powers.
Their petition also prayed the apex court to declare that, in line with the settled law pronounced by the highest court in the case of Aslam Awan and Farrukh Irfan, the inter-se seniority of Respondents No 9-11 shall be determined from the date they take oath as justices of the IHC and would consequently be lower in the seniority list than the petitioners.
The top court had taken up the matter on April 17. In its 3-2 majority verdict on June 19, the apex court disposed of the multiple petitions with Justice Mazhar, Justice Hassan and Justice Panhwar ruling to set aside the pleas.
Justice Afghan and Justice Ahmad, however, allowed the petitions and set aside the notification of judges' transfer.
In its 55-page detailed verdict released today, the Constitutional Bench stated that the president may transfer the high courts’ judges, but no judge shall be so transferred except with their consent and after consultation by the president with the chief justice of Pakistan and the chief justices of both high courts.
The exercise of the powers of transfer by the president under Article 200 of the Constitution is not unregulated or unfettered, read the verdict.
Dismissing the petition, the Constitutional Bench stated that the powers of the president for the transfer of high court judges and the provisions contained under Article 175A of the Constitution for appointment of Judges to the Supreme Court, High Courts, and the Federal Shariat Court by the Judicial Commission of Pakistan are two distinct provisions dealing with different situations and niceties.
The transfer of a judge by the president under Article 200 cannot be construed as a fresh appointment, read the judgment.