Petition urges SC to reverse transfers of judges, clarify constitutional rules on appointment of judges
Justice Babar Sattar (left), Justice Saman Riffat Imtiaz (right) and Justice Mohsin Akhtar Kayani. Photos: IHC website
ISLAMABAD:
A petition filed in the Supreme Court on Thursday challenged the transfer of three judges of the Islamabad High Court, arguing that the move violated Article 2A of the Constitution and undermined judicial independence.
The appeal, filed by Lahore Bar Association president Irfan Hayat Bajwa through senior advocate Hamid Khan, said the transfers were made “without any publicly disclosed demonstrable institutional reasons, criteria or necessity”, and alleged a “lack of transparency and absence of procedural safeguards”.
The Judicial Commission of Pakistan (JCP) on Tuesday approved the inter-provincial transfer of Justice Mohsin Akhtar Kayani to the Lahore High Court (LHC), Justice Babar Sattar to the Peshawar High Court (PHC) and Justice Saman Rafat Imtiaz to the Sindh High Court (SHC).
Read: A trio of “outspoken” IHC judges transferred
“The meetings were convened by the Secretary of the Judicial Commission of Pakistan in exercise of the powers conferred by clause (22) of Article 175A of the Constitution, the Chairman of the Commission, while explaining the reasons for his decision, refused to convene the meeting at the request of one-third of the total members,” the Supreme Court said in a statement on Wednesday.
The statement said the JCP deliberated on various transfer proposals, with the participation of chief justices of the high courts concerned as members of the committee. The transfer decisions were made in accordance with the powers granted by the Constitution and the procedural rules of the JCP.
In addition, the proposed transfers of Judge Arbab Tahir and Judge Khadim Hussain Soomro were withdrawn by the members who had requisitioned them. The commission also decided, by majority, that any vacancy created by the transfer of a judge would be filled by new transfers rather than initial appointments.
The petition claimed that judicial independence was among the “fundamental features” of the Constitution and asserted that any erosion of it “undermines the Constitution.”
He further questioned the legality of transfers under Section 200, saying that exercising such power without defined criteria “makes the process arbitrary, opaque and susceptible to overturn.”
The plea also raised broader constitutional questions regarding the 27th Constitutional Amendment, arguing that the changes affecting judicial jurisdiction were unconstitutional. He said the amendment “constituted a fraud on the electorate” and claimed Parliament did not have the mandate for such changes.
Among other arguments, the petition asserted that the Supreme Court’s jurisdiction could not be transferred to a newly created Federal Constitutional Court and questioned whether such a court could hear cases involving its own creation.
It further stated that “in the absence of reasons, criteria or demonstrable institutional necessity, transfers of judges… are illegal.” The petition also claimed that large-scale transfers without replacement had caused “institutional disruption” and could erode public confidence in the justice system.
The petition asked the Supreme Court to declare the transfers unconstitutional and void, and sought directions on the interpretation of constitutional provisions governing judicial appointments and transfers.
Discord in the ranks of the IHC
This is the first direct application of the 27th Amendment, approved in November last year, to higher courts. This follows amendments to Article 200, which remove the requirement to obtain a judge’s consent before transfer and allow for the relocation of High Court judges between provinces on the recommendation of the Judicial Commission.
The three transferred judges were also among six judges of the Islamabad High Court who had written a letter to the Supreme Judicial Council, seeking advice on how to counter alleged interference by intelligence agencies in their cases.
Earlier in February, when Justice Sardar Sarfraz Dogar was elevated to the post of Chief Justice of the Islamabad High Court from the Lahore High Court, the same three judges were part of a group of five who refused to accept his elevation. They raised concerns about his seniority and questioned the legitimacy of his appointment.
Despite these reservations, Justice Dogar was sworn in as the Chief Justice of the Islamabad High Court a week later. However, the five judges who had expressed concerns did not attend the swearing-in ceremony, although they were formally invited.
Learn more: President approves controversial transfer of three IHC judges
Babar Sattar, a prominent legal analyst known for his outspoken views, was part of Justice Qazi Faez Isa’s legal team that challenged the presidential reference filed against him.
The IHC faced another setback last year when Justice Saman, who headed the harassment committee of the Islamabad High Court, was removed from her post after taking cognizance of a complaint filed by lawyer Imaan Mazari. The complaint followed a verbal altercation in court involving Islamabad High Court Chief Justice Sarfraz Dogar.
The complaint requested an investigation under the Women’s Workplace Harassment Protection Act to determine whether the chief justice made sexist or threatening remarks toward Mazari. Instead, Justice Saman was removed from office and Justice Inaam Ameen Minhas was appointed to head the court’s harassment committee.
Justice Kayani, renowned for his rulings, particularly in human rights matters, was elevated to the bench of the Islamabad High Court in December 2015. Over the years, he has presided over several important cases, including those involving enforced disappearances.
In a landmark verdict delivered in March this year, in a 28-page written judgment, Justice Kayani ruled that in the event of divorce, the husband is legally obliged to return the entire dowry to his wife. He said these goods, as well as bridal gifts, remain the sole property of the woman.
The judgment further states that women are entitled to an equal share of property acquired during marriage, which must be distributed equally between spouses in the event of divorce or death.
Justice Kayani has also been a vocal critic of the 27th Amendment and noted it when it was passed last year.
During a hearing relating to the Council of Islamic Ideology (CII), he observed that while the amendment was underway, the council could also have used the opportunity to expand its authority. He joked that the CII could have sent its proposals, suggesting its powers could also have been strengthened.
