Supreme Court declares transfer of judges constitutional

ISLAMABAD: The Constitutional Bench of the Supreme Court of Pakistan has delivered a 3-2 verdict in the judges’ transfers and seniority case, declaring that the transfers taken place are constitutional. The verdict also said that the President has the authority to decide the issue of seniority.

Justice Muhammad Ali Mazhar, Justice Shahid Bilal, and Justice Salahuddin upheld the transfer of judges. Justice Naeem Akhtar Afghan and Justice Shakeel Ahmed gave dissenting notes.

The verdict declares transfers of Justice Sarfaraz Dogar, Justice Muhammad Asif, and Justice Khadim Hussain Soomro to the Islamabad High Court (IHC) as constitutionally correct. The bench also ruled that the transferred judges do not require to retake their oaths.

The ruling maintains that Justice Sarfaraz Dogar will continue as Acting Chief Justice of the IHC until the President issues a decision on seniority.

The case arose after five IHC judges – Justice Mohsin Akhtar Kayani, Justice Babar Sattar, Justice Tariq Jahangiri, Justice Sardar Ijaz Ishaq, and Justice Saman Rifat Imtiaz – filed a constitutional petition challenging the transfers. The Founder of Pakistan Tehreek-e-Insaf (PTI) Imran Khan and the Karachi Bar Association (KBA) also submitted separate petitions objecting to the legality and process of the transfers and seniority adjustments.

DISSENTING NOTES

Justice Afghan and Justice Ahmed declared the transfers null and void in the dissenting notes. They contended that the constitution was violated through these transfers, arguing that transferred judges cannot be made permanent members of a new high court without following due process.

“The transfers were carried out hastily and without valid reasoning,” the dissenting notes said, adding that they lacked transparency and were “malicious in nature,” which undermined the judicial independence.

They also said that a timeframe must be defined for how long a transferred judge can serve in an acting or permanent capacity in a different high court.

Also read: No constitutional limit on duration of judges’ transfer, says Justice Salahuddin