Supreme Court declares judges transfer to IHC ‘constitutional’

ISLAMABAD: The Supreme Court Constitutional Bench has pronounced its verdict on the judges’ transfer case, declaring the transfer of judges constitutional.

The Constitutional Bench headed by Justice Muhammad Ali Mazhar pronounced its verdict on the judges’ transfer case, and the Supreme Court has disposed of the petitions against the transfer of judges. The verdict was announced by a 3:2 ratio.

The judges in the Bench include Justice Shahid Bilal, Justice Naeem Akhtar Afgan, Justice Salahuddin Pahnwar, and Justice Shakeel Ahmed.

In the verdict, the decision regarding the nature of the transfer (whether permanent or temporary) has been remanded to the President of Pakistan. In addition, the seniority of the transfer judges has also been remanded to the President of Pakistan to decide.

Until the President decides, Justice Sarfaraz Dogar will remain the acting Chief of the Islamabad High Court.

Justice Naeem Akhtar Afghan and Justice Shakkel Ahmed dissented from the majority judgment.

The dissenting judgment was read out by Justice Naeem Akhtar Afghan. At the end of the dissenting judgment, Justice Naeem Akhtar Afghan also reads two lines from two different poems.

The dissenting judgment states that the petitions against the transfer are accepted, and the notification of the transfer of judges is declared null and void.

The President does not have the authority to interfere in the independence of the judiciary. The petitioners say that the punishment was given for taking notice of the interference in the judiciary.

Transfer Case History

Islamabad High Court Justice Mohsin Akhtar Kayani, Justice Tariq Mahmood Jahangiri, Justice Babar Sattar, Justice Sardar Ijaz Ishaq Khan and Justice Saman Riffat Imtiaz, through senior lawyers Munir A. Malik and Barrister Salahuddin, had requested in a 49-page petition filed under Article 184, Clause 3 of the Constitution that the Supreme Court declare that the President does not have unlimited powers to transfer judges under Clause 1 of Article 200.

The petition has urged that judges cannot be transferred from one high court to another without public interest. It may be recalled that Islamabad High Court Chief Justice Aamir Farooq had expressed confidence in previous decisions while justifying the reduction of judges’ posts in the revised seniority list, including a decision of the Supreme Court of India that separated transfers from appointments.

The report stated that Chief Justice Islamabad High Court Justice Aamir Farooq had rejected the petition filed by Justice Mohsin Akhtar Kayani, Justice Tariq Mahmood Jahangiri, Justice Babar Sattar, Justice Sardar Ijaz Ishaq Khan, and Justice Saman Riffat Imtiaz against the amendment in the seniority list.

The decision was issued after a detailed review of the constitutional provisions and judicial precedents related to the transfer and seniority of judges. The matter came to light when the Ministry of Law and Justice issued a notification on February 1 in which three sitting judges, Justice Sardar Muhammad Sarfraz Dogar, Justice Khadim Hussain Soomro, and Justice Muhammad Asif, were transferred from their respective high courts to the Islamabad High Court.