The Supreme Court rejected the request to restrain Acting Chief Justice of Islamabad High Court, Justice Khadim Hussain, and Justice Muhammad Asif from work. In response to a petition filed by five judges, notices were issued to Acting Chief Justice Sarfraz Dogar, Justice Khadim Hussain, Justice Muhammad Asif, registrars of the respective high courts, and the Attorney General.
A five-member constitutional bench of the Supreme Court, headed by Justice Muhammad Ali Mazhar and comprising Justice Naeem Akhtar Afghan, Justice Shahid Bilal Hassan, Justice Salahuddin Panhwar, and Justice Shakeel Ahmed, heard petitions regarding the seniority of judges of the Islamabad High Court.
Justice Muhammad Ali Mazhar stated at the beginning of the hearing that there were seven different petitions before them, including one brought by the five judges themselves. He questioned whether the bench should hear the judges’ petition first. Petitioners include Raja Maqsood, Imran Khan, and several judges of the Islamabad High Court.
At this point, lawyers Idris Ashraf (representing Raja Maqsood and Imran Khan) came to the rostrum and said the petition was filed on the basis of fundamental rights.
Justice Mazhar said it would be better to hear the judges’ petition first and that senior lawyers should be heard first, as per court rules.
Subsequently, lawyers Munir A. Malik and Salahuddin representing the Islamabad High Court judges appeared, and Munir A. Malik began his arguments.
Justice Mazhar highlighted two main issues in the case: the transfer of judges and their seniority. He said civil service seniority rules do not apply to judges and questioned whether seniority should be counted from the previous high court or the new one after the transfer.
Munir A. Malik stated that their objection was on both issues — the transfer and the change in seniority. Justice Mazhar asked him to read Article 200 of the Constitution under which the judges were transferred, which Munir Malik did.
Justice Mazhar noted that under the Constitution, the consent of the transferred judge, the Chief Justices of both high courts, and the Chief Justice of Pakistan is necessary.
Munir Malik argued that a judge’s transfer should only be temporary. Justice Mazhar responded that if that were the case, the Constitution would have specified it — it only states that the President can transfer judges.
Munir Malik emphasized that the President does not have unlimited powers in this regard and that Article 200 should be read in conjunction with Article 175-A concerning judicial appointments. All judges must be treated equally under the Constitution.
Justice Mazhar remarked that the President does have the authority to transfer judges. If judges received any special benefits from such transfers, it would raise concern. However, transfers based on recommendations by the Chief Justice of Pakistan are constitutional.
During the hearing, Justice Naeem Akhtar Afghan raised key questions about transfers, stating that the Islamabad High Court was established by an act of Parliament. He asked whether the act allows for judges to be transferred in. Munir Malik replied that it does not; the act only mentions new appointments.
Justice Afghan inquired why, when there were vacant seats, new judges were not appointed from the same provinces rather than transferring existing judges. He also asked if the oath mentions the specific high court. Malik responded that the draft of the oath does mention the province, and for Islamabad, it refers to the Capital Territory.
Justice Mazhar remarked that when one becomes a temporary judge, they take an oath, and when permanent, they take it again. Seniority is counted from the first oath. If a new oath is taken after a transfer, does that nullify prior service? Should seniority start from the new oath?
Munir Malik argued that this is why consent for transfer is constitutionally required.
The court issued notices to Acting Chief Justice Sarfraz Dogar, Justice Khadim Hussain, Justice Muhammad Asif, the registrars of relevant high courts, and the Attorney General regarding the five judges’ petition.
Justice Mazhar pointed out that the petition did not contain a request to restrain the judges from working; the oral plea was not part of the original filing.
Lawyer Faisal Siddiqui from Karachi High Court Bar appeared and argued that their petition did contain a plea to restrain the judges.
During the hearing, Justice Mazhar dictated the day’s order, stating that seven petitions had been filed before the constitutional bench, including ones from judges of the Islamabad High Court.
According to the order, Advocate Munir Malik argued that powers under Article 200 should be regulated. The bench was told that the notification for judges’ transfers should contain valid reasons, and if a judge accepts a transfer, they should take a fresh oath in the new high court.
The order further stated that the authority under Article 200 should not be unlimited, and that such transfers should be time-bound.
Advocate Faisal Siddiqui argued that a transferred judge’s seniority should remain with their original high court and that an interim seniority list should be created in the new high court.
According to the order, lawyer Idris Ashraf demanded the full record of the transfer process. Justice Mazhar questioned whether the Supreme Court was being turned into a civil court and asked whether the documents already submitted were inaccurate.
Lawyer Hamid Khan requested that his arguments also be included in the written order. He noted that the suo motu notice had been taken on a letter signed by six judges, five of whom are petitioners in this case.
Justice Mazhar questioned the relevance of this case to that letter and asked if Hamid Khan wanted both matters to be heard together. Khan said he reserved the right to raise the issue at an appropriate time.
The Attorney General objected to the maintainability of the petitions under Article 184(3). The court noted that the issue of maintainability was yet to be decided.
The Supreme Court ultimately rejected the plea to restrain Acting Chief Justice Sarfraz Dogar, Justice Khadim Hussain, and Justice Muhammad Asif from performing their duties.
Munir Malik requested that the case be heard before the Judicial Commission meeting on April 18. The court agreed and adjourned the hearing until April 17.
It is notable that seven constitutional petitions were filed regarding the transfer of three judges from other high courts to the Islamabad High Court and the request to bar them from working. These petitions also challenged the seniority list that named Justice Sarfraz Dogar as the senior-most judge. Justice Mohsin Akhtar Kayani and four other judges of the Islamabad High Court have approached the Supreme Court against the seniority list.
