Islamabad:
Judge Muhammad Ali Mazhar raised questions on the request on Monday that the transfer of three judges from the High Provincial Court to the High Court of Islamabad (CIH) was an interference in part of the executive in court cases, noting that each transfer was made after the approval of four different judges.
However, some members of the Constitutional Banc (CB) of the Supreme Court, hearing petitions deposited against the transfer and subsequent change in the list of former IHC seniority, said that the executive had kept the main judges – Pakistan and the respective courses – in the dark about the question of seniority. On Monday, a CB of five members led by J. Mazhar, heard the case of transfer of judges.
During the hearing, the lawyer for Karachi Bar Faisal Siddiqi argued that the IHC had been created under article 175 of the Constitution, which only concerns the provinces concerning the appointment of judges.
He said the judges could not be transferred to the IHC, and even if a transfer occurs, he cannot be permanent and a new oath would not be required when he returned to his high original courtyard. Judge Mazhar asked whether article 200 had become ineffective after applying article 175-A. Siddiqi replied that by virtue of the current transfer system, the powers of the Pakistan Judicial Commission (JCP) are compromised, which is contrary to the spirit of the Constitution.
Siddiqi said seniority is developing over the decades and falsification overnight through executive powers is an authoritarian decision.
Judge Mazhar noted that the transfer process implies four -step approvals: the approval of the chief judge of the High Court concerned, the approval of the chief judge of the High Court of Reception, the approval of the transferred judge and the approval of the chief judge of Pakistan.
“If one of them refuses, the transfer cannot continue. If the process was in the hands of the executive, it would be a different question, but here it requires the approval of four judicial forums.”
Siddiqi told court that the transfer had been made with bad faith and that the judiciary was kept in ignorance of the sensitive question of seniority.
The Pakistan Attorney General (AGP) Mansoor Awan argued that by virtue of article 200, the transfer of judges can be permanent or temporary. A temporary transfer is mentioned in the notification and is accompanied by additional services, while a permanent transfer grants the judge to the official residence.
Judge Shakeel Ahmed wondered if the oath and seniority of the judges were to be decided by the Secretary of Law. He asked if someone had asked for the opinion of the Secretary of the Act respecting the issue. “Why did the legal secretary include clarifications on seniority and the oath in the last summary?
He pointed out that the need for the legal secretary to specify that the transferred judges do not need to take an oath lift concerns. The Supreme Court then postponed the hearing until today (Tuesday).
