Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
A petition filed in the Supreme Court on Thursday challenging the transfer of three judges of the Islamabad High Court (IHC) has brought the controversy to the forefront, with the plea arguing that the move violates constitutional guarantees and undermines judicial independence.
The petition, filed by Lahore Bar Association president Irfan Hayat Bajwa through senior advocate Hamid Khan, claims the transfers were made “without any reason, criteria or demonstrable institutional necessity made public”.
He denounces a “lack of transparency and an absence of procedural guarantees”.
It further asserts that judicial independence is among the “fundamental features” of the Constitution and warns that any erosion thereof “undermines the Constitution.”
The legal challenge comes as Justices Babar Sattar and Mohsin Akhtar Kayani prepare to take up judicial duties at the Peshawar High Court (PHC) and the Lahore High Court (LHC), respectively, following their transfer from the IHC.
The transfers, approved by the Judicial Commission of Pakistan (JCP) on April 28 and notified by the law ministry on April 29, also included Justice Saman Rafat Imtiaz, who was transferred to the Sindh High Court. The decision drew criticism from some sections of the legal fraternity.
Court lists released Thursday confirmed that the transferred judges will begin hearing cases in their new positions next week.
The revised list of the LHC for the period May 4 to July 4 shows that Justice Kayani will sit as single judge in the principal bench, where 27 single benches and nine division benches have been constituted, as notified by Additional Registrar (Judicial) Shabbir Hussain Shah.
At the PHC, Justice Sattar was included in the list from May 4 to 7 and will sit on a division bench at the main bench along with Justice Wiqar Ahmad on Monday.
The PHC list, approved by Chief Justice SM Attique Shah, includes nine single benches and one division bench.
In its arguments, the petition questions the legality of transfers under Article 200 of the Constitution, saying that exercising such powers without defined criteria “renders the process arbitrary, opaque and susceptible to nullification.”
He also raises constitutional concerns related to the 27th Constitutional Amendment, claiming that changes affecting judicial jurisdiction were illegal and calling the amendment a “fraud on the electorate”, while asserting that Parliament lacked the mandate to enact such measures.
The plea further challenges the transfer of jurisdiction from the SC to a newly created Federal Constitutional Court, questioning whether such a court can rule on issues related to its own creation.
It reiterates that “in the absence of reasons, criteria or demonstrable institutional necessity, transfers of judges… are unlawful,” and warns that large-scale transfers without replacement have caused “institutional disruption” and risk eroding public confidence in the justice system.
The petitioner requested the SC to declare the transfers unconstitutional and void, and issue directions clarifying the constitutional framework governing judicial appointments and transfers.
