Islamabad:
The Supreme Court has judged that the Constitution gives the President the power to transfer a judge from one high court to another under certain conditions.
A constitutional bench (CB) of the Supreme Court unveiled its detailed ordinance on the requests filed against the transfer of three judges to the High Court of Islamabad (CIH) in February of this year.
On February 1, the Ministry of Law made a notification for the transfer of judge Sardar Muhammad Sarfraz Dogar, judge Khadim Hussain Soomro and judge Muhammad Asif – in a respectful manner of the High Court of Lahore, the High Court of Sindh and the High Court of Balochistan – at the IHC.
Following this transfer, approved by the president, the IHC has published a new seniority list, classifying Judge Dogar as the main judge. Five IHC judges have filed representations against this seniority list.
However, the IHC chief judge, Aamer Farooq, rejected these representations. The judges of the IHC and other petitioners, including Imran Khan, challenged the notification of the ministry as well as the new seniority list before the Supreme Court, of which the CB of five members heard the case.
On June 19, the CB led by judge Muhammad Ali Mazhar said that the transfer of the three judges was not unconstitutional with a majority decision of 3 to 2.
The majority opinion was supported by judge Mazhar, judge Shahid Bilal and judge Salahuddin Panhwar. However, Judge Naeem Akhtar Afghan and Shakeel Ahmad dissident from the majority decision. The majority judges have now unveiled a detailed 55 -page order.
In the majority ordinance written by judge Mazhar, the CB recognized that by virtue of the Constitution, a high court judge could be transferred to another high court by the president. “However, he read in article 200 an important limitation: a transfer can only be made in the public interest, not as a punitive measure or for political purposes.”
He declared that a non -consensual transfer – particularly associated with forced retirement on the refusal – campaigns against the concept of the independence of the judiciary and is effectively equivalent to a bypass of the referral process under article 209.
The verdict said that the introduction of provisions in the constitution for the transfer of a high court judge before another high court without his consent and also the appointment of a high court judge at the Federal Shariar Court without his consent, at the risk of his retirement in the event of refusal will be unconstitutional.
“”[Similarly introduction of a] The provision relating to the appointment of a high court judge to one of his benches is amendments / additions [to the Constitution] Who campaign against the concept of independence / separation of the judiciary as envisaged by the Constitution, “he added.
The petitioners had opposed all the action of transfer as being illegal and unconstitutional.
They also argued that the fresh oath had not been loaned by the transferred judges.
Addressing objections, the verdict also said that, according to the constitution regime, if a judge is transferred to another high court, he cannot be dealt with as a new appointment.
He said that if a person becomes a high court judge, he continues to occupy the office until the age of the retirement pension unless he resigns earlier or moved from his functions. “So, for all practical purposes, if a judge is transferred before another high court, he does not enter a new office,” said the verdict.
