Procedure to transfer judges placed on record

• Two high court registrars back govt’s stance
• LHCBA, LBA provide additional grounds to challenge executive’s power to transfer judges
• Constitutional Bench to resume hearing the case today

ISLAMABAD: The federal government has submitted to the Sup­r­eme Court’s Constitutional Bench com­­plete record of the process of jud­ges’ transfer to Islamabad High Cou­rt (IHC), including the summary initiated by the government and the consent given by Chief Justice of Pa­­kistan (CJP) Yahya Afridi and chief justices of the respective high courts.

Headed by Justice Muhammad Ali Mazhar, the constitutional ben­ch, during the last hearing to settle the dispute involving IHC judges’ seniority, had asked the federal government to furnish complete record regarding the transfer and concise statements by other respondents.

Subsequently, the registrars of the IHC and Lahore High Court (LHC) furnished their concise statements. The Lahore High Court Bar Association (LHCBA) and the Laho­­re Bar Association (LBA) in their statements provided additional grounds to strengthen their point of view, a day before the constitutional bench resumes the case proceedings.

The bench is seized with a set of petitions moved by five IHC judges, Justice Mohsin Akhtar Kayani, Justice Tariq Mehmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan and Justice Saman Rafat Imtiaz, with a plea not to treat the three transferred judges as IHC judges until they take a fresh oath under Article 194, read in conjunction with Schedule III of the Constitution.

As per official record, the process to move the summary for Prime Minister Shehbaz Sharif for the tra­nsfer of Justice Sardar Muhammad Sarfraz Dogar and Justice Khadim Hussain Soomro, the PM’s advice to President Asif Ali Zardari and the latter’s approval was initiated and completed on the same day (i.e. Jan 28, 2025), while the same process for the transfer of Justice Muhammad Asif was done on Jan 30.

Similarly, all the stages for the legal process related to consents of the chief justices of LHC, Sindh High Court, IHC and CJP were completed between Jan 29 and Feb 1. Su­­bse­quently, after having the requi­red consents for the transfer of the three judges, the process to send sum­­mary for approval of the prime minister for transfer of the three judges, PM’s advice to the president for the transfer and the latter’s app­roval followed by issuance of the notification by the law ministry and the gazette was all done on the same day.

In his concurrence, CJP Afridi observed that the proposed transfer of judges from the high courts of different federating units to the IHC completely sync with the spirit of federalism as enshrined in the Cons­titution. It is also in conformity with Section 3 of the Islamabad High Cou­rt Act, 2010, besides the thoughtful consideration behind the proposal illustrates resolve in providing an equitable share to linguistic diversity of the country and fair chance of representation to all the federating units in the high court of the common capital of the federation i.e. IHC, the CJP wrote in his consent.

Registrars’ statements

In his concise statement, LHC registrar Amjad Iqbal Ranjha explained that Justice Dogar was at 15 on the seniority list of the judges of the high court at the time of his transfer from LHC to IHC. Pursuant to the notification of Feb 1 issued by the law ministry, Justice Dogar relinquished the charge of the office of LHC judge on Feb 1.

On the other hand, IHC registrar Muhammad Yar Walana in his statement claimed that the transfer of the judges was made after fulfilling all constitutional requirements. The process of transfer was initiated, processed and then finalised in accordance with Article 200 of the Constitution.

Acting CJ Dogar had already been administered oath as additional judges and as judge of the IHC. On his transfer to the IHC on basis of the rule laid down for seniority, Justice Dogar was made senior puisne judge of the IHC on Feb 3. The senior puis­­ne judges are ordinarily appoin­ted as acting CJ of respective high courts and that on the basis of the same principle and judicial convention Justice Dogar was appointed as ACJ of IHC, the registrar pointed out.

Arguments by LHCBA, LBA

Meanwhile, the LHCBA and LBA filed additional arguments before the bench, highlighting that the CJP had primacy in the matter of transfer of a judge from one high court to another and has also a constitutional right and obligation to move a summary for that purpose.

Moved by senior counsel Muhammad Waqar Rana, the petition explained that the executive branch of the government could not initiate such transfer process on its own. Since the summary in the present case was purportedly moved by the executive with mala fide and for extraneous grounds, the transfer notification be declared void, the petition said.

Likewise, the CJP was obligated to consult with senior judges of the Supreme Court before consultation with the executive on the matter of judges’ transfer.

It is submitted that the transfer of the three judges could take place only after a “consensus” was reached amongst the senior most judges of the Supreme Court.

As no such consultation apparently took place amongst the senior judges of the SC, the entire exercise was carried out in a mysterious and illegal way, the petition alleged, adding that consultation with the CJP was mandatory prior to the transfer of judges. The transfer of a judge under Article 200 was not an absolute power of the president, the petition said, adding the constitutional discretion had to be exercised justly, fairly, equitably and in the public interest and to secure independence of the judiciary and not to undermine it.

Published in media, April 22nd, 2025