ISLAMABAD: Justice Naeem Akhtar Afghan and Justice Shakeel Ahmed, judges of the Supreme Court, have held that the transfer of three judges to the Islamabad High Court (IHC) on a permanent basis by the president is wrong and ultra vires the Constitution.
In a 40-page joint dissenting note issued on Friday, both the judges ruled and declared that the transfer of a judge of a high court from one high court to another high court by the president, in exercise of his discretion under Clause (1) of Article 200 of the Constitution, cannot be permanent and it has to be temporary i.e. for a period/ term.
“The impugned notification by the president arbitrarily in wrong exercise of discretion under Clause (1) of Article 200 of the Constitution for permanent transfer of three Judges from LHC, SHC and BHC to IHC has given a serious blow to the independence of judiciary”, the two judges held.
On June 19, a five-member Constitutional Bench of the apex court headed by Justice Muhammad Ali Mazhar had dismissed identical petitions challenging the transfer of judges from the Lahore High Court (LHC), Sindh High Court (SHC) and Balochistan High Court (BHC) courts to the IHC, holding that the transfer of judges by the president, by means of a notification is within the framework of the Constitution and cannot be declared ultra vires. Other members of the bench were Justice Naeem Akhter Afghan, Justice Shahid Bilal Hassan, Justice Salahuddin Panhwar and Justice Shakeel Ahmad.
Five sitting IHC judges -- Justice Mohsin Akhtar Kiyani, Justice Tariq Mehmood Jehangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan and Justice Saman Riffat Imtiaz -- had filed identical petition in the Supreme Court under Article 184(3) of the Constitution.
They had challenged the transfer of Justice Sarfaraz Dogar from the LHC, Justice Khadim Hussain Soomro from the SHC and Justice Muhammad Asif from the BHC to the IHC.
The court by majority of 3 to 2, comprising Justice Muhammad Ali Mazhar, Justice Shahid Bilal Hassan and Justice Salahuddin Panhwar had dismissed the identical petitions after holding that the transfer of judges by the President of Pakistan is constitutional. Whereas, Justice Afghan and Justice Shakeel Ahmad, vide their own short order allowed the constitutional petitions and set aside the Notification No.F.10(2)/2024-A.II, dated 01.02.2025.
The majority judges however, partially remanded the matter to the president, without upsetting the notification of transfer, to determine the seniority after examining/ vetting the service record of the transferee judges as soon as possible, including the question of whether the transfer is on a permanent or temporary basis.
On Friday, Justice Afghan and Justice Shakeel Ahmed in their joint dissenting note further held that permanent transfer of three judges to the IHC by the president has offended Article 175A of the Constitution and has made the same redundant.
“Due to issuance of the impugned notification by the president in wrong exercise of discretion, a ripple has been caused in the comity of judges and the turbulence created in the IHC has seriously affected the working relationship amongst the judges of the IHC which has consequently affected the smooth working and disposal of the IHC making the litigants to suffer at large,” they held.
Both the apex court judges noted that the issuance of the notification in wrong exercise of discretion by the president has frustrated the legitimate expectancy of the sitting judges of IHC, the judges senior to Sardar Muhammad Sarfraz Dogar J. in the LHC, the judges senior to Khadim Hussain Soomro J. in the SHC and the judges senior to Muhammad Asif J. in the BHC with regard to their future prospects.
They further held that permanent transfer of three judges from the LHC, SHC and BHC to the IHC by the president arbitrarily and in wrong exercise of discretion is violative of Article 4 of the Constitution as the senior judges of the LHC, SHC, BHC and IHC have not been dealt with in accordance with law.
“In absence of any objective criteria, arbitrary selection of Sardar Muhammad Sarfraz Dogar, J. (at Sl. No.15 of the seniority list of LHC), selection of Khadim Hussain Soomro, J. (at Sl. No.20 of the seniority list of SHC) and selection of Muhammad Asif, Additional Judge of BHC by the President for their transfer to IHC is violative of Article 25 of the Constitution as all the senior Judges in LHC, SHC, BHC and IHC have been discriminated,” the two judges held.
They reiterated that the rule of law and strict adherence to the Constitution by all the organs of the State and the institutions attached therewith is the key to prosperity of Pakistan and promotion of national interest.
“Further, the executive orders must be within the scope of the Constitution and same should not be arbitrary and capricious,” the two judges held, adding that short term gains achieved by violating the Constitution will always undermine the nation’s long term interests in stability, legitimacy and the rule of law.
