Islamabad:
The Supreme Court examined Tuesday the procedure for the transfer of judges in India, noting that unlike the neighboring country, the constitution of Pakistan requires the consent of a high court before being able to be transferred to another high court.
A constitutional bench of five members (CB) led by judge Muhammad Ali Mazhar heard several requests contesting the transfer of three judges from the provincial high courts to the High Court of Islamabad (CIH), as well as the subsequent change in the list of judges of the CII.
During the procedure, Hamid Khan, representing the bar of the High Court of Lahore, continued his arguments, declaring that several legal aspects of the transfers of high lessons judges need in -depth attention.
Judge Muhammad Ali Mazhar pointed out that in India, the consent of judges is not required for transfers, and such decisions are made in consultation with the chief judge of the High Court of this State. “In our system, however, obtaining the consent of a judge for transfer is a constitutional requirement,” he noted.
Judge Naeem Akhtar Afghan observed that India is following a unified framework system for high court judges, while Pakistan has no similar system for seniority. Judge Shakeel Ahmed added that in India, the seniority list for high court judges is uniform.
Hamid Khan argued that in India, the consultation of the chief judge is compulsory before any transfer. He declared that consent is essential during the transfer of judges and that, under article 3 of the law of the High Court of Islamabad, a consultation is required before a transfer or a new appointment.
“The selection of judges for the transfer must be based on merit and that the executive power should not have the authority to appoint judges for the transfer. This power should be based only with the chief judge,” he said.
Hamid Khan stressed that instead of transferring judges to the IHC, new appointments are often made. “In a recent case, the acting chief of the IHC was consulted concerning the transfer of a Balutchistan judge, but the advice for transfers have not been approved by the cabinet,” he added.
Idrees Ashraf Advocate, representing the founder of the PTI, Imran Khan, also presented his arguments. He said that the transfer notification had not mentioned the mandate of the transferred judges and said that such transfers could cause discrimination between judges within the same high court.
Judge Mazhar asked the lawyer if article 25, which guarantees equality before the law, was to be taken into account in the transfers of judges. He also asked if the council would be satisfied if the transfer mandate was set at two years, noting that the basic question remains the question of seniority.
The court then postponed the hearing until 9:30 am today (Wednesday).
