Islamabad:
In a majority verdict, a constitutional bench (CB) of the Supreme Court confirmed Thursday the transfer of three judges from the High Provincial Court to the High Court of Islamabad (CIH), noting that these transfers could not be declared new appointments.
However, the majority judges partially referred the case to the president of Pakistan to determine the seniority of the judges transferred after having examined and verified their service file “as soon as possible, including the question of whether the transfer is permanent or temporary”.
Two of the judges – Judge Naeem Akhtar Afghan and judge Shakeel Ahmed – however declared the notification of the transfer of judges “zero, unvenue and without legal effect” in their minority order.
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 – respectively 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. After the elevation of Judge Farooq at the Supreme Court, judge Dogar was also raised as an acting chief of the IHC.
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.
Thursday, three members of the CB – Justice Muhammad Ali Mazhar, judge Shahid Bilal Hassan and judge Salahuddin Panhwar – expressed their short order, having petitions.
The ordinance noted that the powers of the president under the sub-article (1) of article 200 of the Constitution for the transfer of a judge and the provisions contained under article 175A for the appointment of judges by the Judicial Commission of Pakistan (JCP) are two separate provisions concerning different situations.
“They do not overlap or overlap each other.
“In addition, the transfer powers conferred on the president by none other than the editors of the Constitution cannot be questioned in the anvil or on the grounds that if the posts were vacant in the IHC, then why they were not filled by JCP by fresh appointments.
“Another important facet that can only be lost is that the transfer from a high court to another can only be carried out in the sanctioned force, which can only be considered as a simple transfer and does not consist in increasing the sanctioned force of a particular high court,” he said.
It noted that if it is presumed that all messages should be filled by JCP alone by new appointments, then such an interpretation or state of mind would go not only against the manifest intention of the editors of the Constitution, but will also constitute to cancel or make the substrate and the existence of the Constitution.
“The article is absolutely not dependent, concomitant or at the mercy of article 175a of the Constitution, but is an independent and autonomous provision dealing with the transfer of the judges of a high court (definitively or temporarily) and not of the appointment of the judges, which has now been awarded to the Constitution.”
The majority judges, however, partially returned the case to the president, without upsetting the transfer notification, to determine the seniority after having examined / verified the file of the transferred judges, including the question of whether the transfer is permanent or temporary.
“Until the seniority and nature of the transfer (permanent or temporary) of the assignee judges are determined by the president of Pakistan by notification / order, judge Sardar Muhammad Sarfraz Dogar, already occupying the position of acting chief of the IHC, will continue to occur as an interim CJ chief,” they added.
The dissident note
Judge Naeem Akhtar Afghan and judge Shakeel Ahmed disagreed with the majority order and declared the notification of transfer of the zero judge and no.
They declared that the clause (2) of article 200 of the Constitution is subject to the clause (1) of article 200 of the Constitution and the two are interconnected.
“According to the doctrine of harmonious construction, while interpreting the clause (1) and the clause (2) of article 200, the two clauses must be harmonized and, being coherent with each other, must be read in conjunction with each other to give an effect both without creating conflict or absurdity”
“When the clause (1) and the clause (2) of article 200 are read in conjunction with each other, he provides that when, in the exercise of his discretionary power, the president transfers a judge from a high court to another, during the period for which he served as a judge of the High Court to which he is transferred, the judge thus transferred is entitled.
The order indicated that the Pakistan Attorney General had conceded and categorically transmitted to the Court on behalf of the Pakistan Federation that the three judges were permanently transferred.
He indicated that the clause (1) and the clause (2) of article 200, read jointly between them, do not provide for the permanent transfer of a high court to another and provide for the transfer of a judge a period – on a temporary basis.
He declared that the permanent transfer of three judges to the IHC was carried out in the poor exercise of the discretionary power under paragraph (1) of article 200 of the Constitution and offended article 175a of the Constitution, which makes it redundant.
“The process of permanent transfer of three judges to the IHC suffers from the concealment of relevant and material facts of the judges of the assignee, the main judges of the IHC, the LHC, the SHC, the BHC and the Honorable Judge of Pakistan (CJP)
“The process of permanent transfer of three judges to the IHC also lacks significant consultation, priority and centered on consensus with the main judges of the IHC, the LHC, the SHC, the BHC and the Honorable CJP on all the relevant questions,” he added.
The minority order noted that intelligence agencies, including the ISI, have no role under the Constitution for the appointment or transfer of judges.
“Being subordinate to the executive, intelligence agencies, including ISI, cannot prevail over the executive, judiciary, constitutional organizations and holders of constitutional offices,” he added.
