Constitutional Bench moves from judges ‘transfers’ to ‘seniority’ debate

ISLAMABAD: The five-member bench of the Constitutional Bench of Supreme Court, headed by Justice Muhammad Ali Mazhar, resumed hearing of the case related to transfer of judges and seniority.

During yesterday’s hearing, lawyer Hamid Khan has said that extraordinary haste was shown in the transfer of judges in the Islamabad High Court (IHC). He resumed his arguments from yesterday, saying that many points should be considered on the transfer of judges from the High Courts.

Justice Mazhar responded that in India, the consent of the judge is not taken in the transfer of judges. “In our country, the consent of the judge on the transfer is a constitutional requirement.”

Justice Naeem Akhtar Afghan said, “There is a unified cadre of high court judges in India. There is no unified cadre of seniority of high court judges in Pakistan.”

Justice Shakeel Ahmed said that the seniority list of high court judges in India is the same, and the seniority of any judge is not affected on the transfer of judges.

The counsel Hamid Khan said that in the Al-Jihad Trust case, the Supreme Court had fixed the principle of seniority. “The appointment of judges used to be done by the Chief Justice of Pakistan (CJP) working together with the Chief Justices of High Courts. During this time, the Executive started acting arbitrarily in the matter of appointment of judges,” he said.

Instead of transfers, new appointments of judges should have been done for the Islamabad High Court (IHC), Hamid Khan added.

Justice Mazhar, addressing the counsel said, “Your time for arguments is finished. You have covered many points in the arguments.” The bench gave Hamid Khan an addition 10 minutes, with Justice Mazhar saying that Faisal Siddiqui will give arguments after Hamid Khan.

“The consultation process on the transfer of Justice Khadim Hussain is flawed.” Hamid Khan said, “The Acting Chief Justice was consulted for the transfer of a judge from Balochistan. There is also a flaw in the advice on the transfer of judges. The cabinet approval of the advice was not taken.”

He added that the CJP did not conduct any meaningful consultation in the process of transfer of judges.

Justice Afghan remarked that the requirement is of taking consent, and not consultation, when it comes to the process of transfer of judges. Hamid Khan responded, “The real aim was to bring Justice Sarfaraz Dogar. The transfer of the other two judges was done merely for show.”

Article 200 was used to misuse powers,” the counsel added.

At this point, the counsel of Imran Khan Idrees Ashraf said that the period of transfer of judges is not mentioned in the notification. “By transferring judges, differences cannot be created between the existing judges of the High Court. Judges cannot be treated differently,” he said.

Justice Mazhar asked, “You want to say that Article 25 should be kept in view during the process of transfer of judges?”

“If the transfer of judges was for two years, would you be satisfied with it?” Justice Mazhar asked the counsel, adding that the real issue is of seniority.

Afterwards, the court adjourned the hearing until 9:30 AM tomorrow. Idrees Ashraf will continue his arguments in tomorrow’s hearing.

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