ISLAMABAD:
The newly established Federal Constitutional Bench (FCC) is set to hear intra-judicial appeals filed by five judges of the Islamabad High Court (IHC) against a split order of the Supreme Court approving the transfer of three judges from different high courts to the IHC.
According to a list of cases released by the FCC, a six-member bench headed by Chief Justice Amin-ud-Din Khan will hear the intra-judicial appeal tomorrow (Monday) at 11:30 am.
The bench also includes Justice Hasan Azhar Rizvi, Justice Ali Baqar Najafi, Justice KK Agha, Justice Rozi Khan Barrech and Justice Syed Arshad Hussain Shah.
However, the petitioning judges challenged the decision to send the case back to the FCC, asking the newly formed court to send the intra-judicial appeals back to the Supreme Court.
They argued that the calls were transferred to the FCC under the 27th Constitutional Amendment, but that the 27th Amendment itself is unconstitutional.
They said the legislative, executive and judicial branches are all created under the 1973 Constitution, which defines the separation of powers and the limits of each institution.
The petition stated that constitutional amendments could not be used to abolish judicial authority and that the Supreme Court’s rulings clearly upheld the principle of separation of powers.
In February, the Law Ministry issued a notification regarding the transfer of Justice Sardar Muhammad Sarfraz Dogar, Justice Khadim Hussain Soomro and Justice Muhammad Asif – from the Lahore High Court, Sindh High Court and Balochistan High Court respectively – to the IHC.
Following this transfer, approved by the President, the IHC issued a new seniority list, listing Justice Dogar as a Senior Puisne Judge.
Five IHC judges – Justice Mohsin Akhtar Kayani, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, Justice Saman Rafat Imtiaz and Justice Tariq Mehmood Jahangiri – have filed representations against this seniority list. The then IHC Chief Justice Aamer Farooq rejected these representations.
The IHC judges and some other petitioners, including Imran Khan, challenged the ministry’s notification as well as the new seniority list in the Supreme Court, whose five-member Constitutional Bench (CB) heard the matter.
On June 19, the CB headed by Justice Muhammad Ali Mazhar declared that the transfer of the three judges was not unconstitutional, by a majority of 3-2.
The majority opinion was supported by Justice Mazhar, Justice Shahid Bilal and Justice Salahuddin Panhwar. However, Justice Naeem Akhtar Afghan and Shakeel Ahmad disagreed with the majority decision. The IHC judges filed an intra-judicial appeal against this order.
