In a significant development, the Supreme Court of Pakistan’s constitutional bench dismissed a plea seeking suspension of the new seniority list of Islamabad High Court (IHC) judges. The court also rejected a request to stop the newly transferred judges from performing their duties. This case, centered on the transfer and seniority of judges, is seen as a crucial test of judicial appointments and constitutional interpretation.
Supreme Court Bench Hears Petitions
A five-member constitutional bench headed by Justice Muhammad Ali Mazhar heard the petitions filed by five IHC judges challenging their transfer and altered seniority. Prominent lawyer Munir A. Malik represented the petitioners and initiated arguments by referencing Article 175 of the Constitution, which deals with the structure and independence of the judiciary.
According to Malik, the transfer of judges should not be treated in isolation but considered in the broader context of federalism and the formation of judicial administrative committees. However, Justice Ali Mazhar promptly pointed out that judicial transfers fall under Article 200, not 175. He stated that judges cannot be treated like civil servants whose postings and transfers follow administrative commands.
Transfer Process Explained by the Court
Justice Mazhar elaborated on the procedural steps required for the transfer of a High Court judge, emphasizing the multiple layers of consent involved. These include:
- The consent of the judge being transferred
- The consent of the Chief Justice of the originating High Court
- The consent of the Chief Justice of the receiving High Court
- The approval of the Chief Justice of Pakistan
- A formal notification by the President of Pakistan
He asked Munir A. Malik to clarify whether the petitioners object to the transfer itself or their altered seniority status. Malik responded that their objection was to both.
Debate Over Constitutional Interpretation
The discussion soon veered into the territory of constitutional interpretation. Justice Mazhar observed that the petitioners were essentially seeking to introduce new language into the Constitution, comparing it to the previously controversial interpretation of Article 62(1)(f), which led to lifelong disqualification of lawmakers. That interpretation had faced severe criticism and was later modified upon review.
Questioning of Oath and Provincial Representation
Justice Naeem Akhtar Afghan raised questions about judicial representation and appointments. He inquired why new judges were not appointed from within the same provinces where vacancies had emerged, rather than transferring judges from other provinces.
He also questioned whether a judge’s oath specifies which High Court they belong to. Munir A. Malik replied that the oath template does mention the province. However, in the case of the Islamabad High Court, the oath references the Islamabad Capital Territory,making it distinct from provincial high courts.
Court Rejects Requests, Issues Notices
After hearing the arguments, the constitutional bench denied the petitioners’ requests to suspend the current seniority list or to stop the transferred judges from assuming their roles. The court made it clear that the established procedures had been followed and there was no legal basis to halt the ongoing process.
However, the court did agree to proceed with further examination of the case. Notices were issued to the Acting Chief Justice of Islamabad High Court, Justice Sarfaraz Dogar, as well as Justice Khadim Hussain, Justice Muhammad Asif, the Judicial Commission of Pakistan, and the Attorney General. The hearing was adjourned until April 17 for further deliberations.
This case carries broader implications for judicial independence, constitutional interpretation, and how judges are appointed and transferred in Pakistan. It highlights the delicate balance between the judiciary’s administrative framework and constitutional law. The court’s strong stance against altering constitutional language without legislative input signals a cautious approach to maintaining legal consistency.
As the case proceeds, legal observers and constitutional experts will be watching closely to see how the Supreme Court resolves the tension between judicial authority and constitutional protocol. The outcome could set a precedent for future appointments and inter-court transfers, particularly as Pakistan’s judiciary faces increasing scrutiny and evolving legal challenges.
