ISLAMABAD: The transfer of three Islamabad High Court (IHC) judges to other high courts was challenged in the Supreme Court on Thursday.
Lahore High Court Bar Association (LHCBA) President Irfan Hayat Bajwa challenged the matter in the apex court under Article 184(3) of the Constitution, making President of Pakistan, the Federation through the Ministry of Law and Justice and Judicial Commission of Pakistan (JCP) as respondents. Filed through senior lawyer Hamid Khan, the petitioner prayed the SC to declare that the omission and repeal of Article 184(3) of the Constitution as framed and adopted by the parliament in 1973 through the 27th Amendment is void, unconstitutional and of no effect being against the basic/salient features of the Constitution.
He prayed the apex court to declare Article 175(2), as amended by the 27th Amendment, null and void, unconstitutional and of no legal effect, arguing that the amendment itself is ultra vires as it violates the Constitution’s basic structure — beyond the amending powers of parliament. Similarly, he prayed the apex court to declare that the transfer of three IHC judges to different high courts by the Judicial Commission of Pakistan (JCP) is unconstitutional and void and of no legal and constitutional effect.
The JCP the other day transferred Justice Mohsin Akhtar Kiyani, judge of IHC to Lahore High Court, Justice Babar Sattar, judge of IHC to Peshawar High Court, and Justice Saman Rifat Imtiaz, IHC judge to Sindh High Court.
In its petition, the LHCBA submitted that the judges of Federal Constitutional Court (FCC), being the beneficiaries and judges in their own cause and also the creation and its jurisdiction having been challenged through this petition, could not hear and decide the constitutionality of the 27th Amendment and matters arising thereunder.
It contended that in any case, the action of transfer of judges of IHC under Article 200 as amended by the 27th Constitutional Amendment cannot be heard by the so-called FCC being itself a creation of the 27th Amendment.
“In the absence of any substantive and disclosed reasons, criteria, or demonstrable institutional necessity, the transfers of judges of the Islamabad High Court to other High Courts under Article 200 of the Constitution are unlawful, or are liable to be declared arbitrary, mala fide in law, and based on extraneous considerations,” the petitioner contended. The petitioner submitted that the impugned transfers of judges of the IHC to other high courts have been effected without any disclosed reasons, criteria, or demonstrable public interest, thereby rendering the exercise of power arbitrary, opaque, and liable to be set aside. He submitted that the role exercised by the JCP in recommending such transfers is subject to judicial review, and the absence of transparency and reasoning vitiates the recommendation-making process.
He contended that allowing such transfers without safeguards would set a dangerous constitutional precedent, enabling the circumvention of the explicit mechanism provided under Article 209 of the Constitution of Pakistan, thereby permitting removal of judges through indirect administrative means.
