Islamabad:
Judge Muhammad Ali Mazhar, a member of the Constitutional Bench of the Supreme Court, noted on Wednesday that three chief judges had given their consent to the judicial transfers in question. He added that chief judge Yahya Afridi had provided a detailed explanation of the federal structure of the High Court of Islamabad (IHC) in this context.
Judge Mazhar made these observations while directing a bench of five members hearing a series of petitions contesting the inter-site seniority of five judges in office, namely the judges Mohin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan and Saman Rafat Imtiaz.
The five judges have jointly replaced the Supreme Court, arguing that the three transferred judges should not be considered as judges of the IHC until they take the oath under article 194 of the Constitution, read in collaboration with Annex III.
Judge Sardar Muhammad Sarfraz Dogar, judge Khadim Hussain Soomro and judge Muhammad Asif were transferred respectively from the high lessons of Lahore, Sindh and Balutchistan on February 1 by means of a notification published by the President of Pakistan under article 200, paragraph 1, of the Constitution.
During the hearing on Wednesday, the Senior Lawyer will be able to Malik, representing the five judges, argued that the transfer of a judge is an executive act and therefore subject to a judicial examination.
He argued that the transfer summaries had been sent to the president without approval of the cabinet, referring to the decision of the Supreme Court in the Mustafa Impex case, which emphasized the constitutional requirements for executive decisions.
Judge Naeem Akhtar Afghan pointed out that the decision of Mustafa Impex canceled article 16 (2) of the rules of activity which, he said, was not directly linked to the process of transferring judges.
The lawyer with Malik cited the presidential reference case of Qazi Faez Isa, where the Supreme Court had stressed the president’s obligation to apply an independent spirit to legal issues.
He said that the transfer of judges reflected that the President and the Prime Minister had given their approval on the same day. He said that the judiciary had not been consulted before issuing the transfer notifications and that summaries were not sent by the judiciary.
Judge Mazhar pointed out that three chief judges had expressed their consent to the transfers in question. He also noted that the chief judge Yahya Afridi had deeply discussed the federal structure of the IHC in this regard.
Bringing in Malik argued that when the summary was sent, there was no mention of the oath or seniority. He said that after approval of the summary, the notification indicated that there was no need for a new oath.
Judge Mazhar pointed out that article 200 of the Constitution – which governs the transfer of judges – was referenced in the notification. He noted that a consultation between the judges would have taken place. He said that there was no mention of the oath in the notification.
Mining in Malik argued that the justification for transfers mentioned the proportional representation of Punjab. He stressed that judge Aamer Farooq, judge Babar Sattar and judge Ejaz Ishaq Khan, all dominant from Punjab, already served the IHC. He said that transfers were part of a pre-plainified effort to dominate the IHC.
Later, the case of the case was adjourned until May 7.
