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 fore, with the plea claiming that the transfer violates constitutional guarantees and undermines the independence of the judiciary.
The petition, filed by Lahore Bar Association president Irfan Hayat Bajwa through senior counsel Hamid Khan, claims the transfers were carried out “without any publicly disclosed reasons, criteria or demonstrable institutional necessity”.
It claims a “lack of transparency and absence of procedural guarantees”.
It further asserts that judicial independence is part of the Constitution’s “fundamental feature” and warns that any erosion of it “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 Lahore High Court (LHC) respectively, following their transfers from the IHC.
The transfers, approved by the Judicial Commission of Pakistan (JCP) on April 28 and announced by the Law Ministry on April 29, also included Justice Saman Rafat Imtiaz, who has been shifted to the Sindh High Court. The decision has drawn criticism from sections of the legal fraternity.
Court lists issued Thursday confirmed that the transferred judges will begin hearing cases in their new positions next week.
The LHC’s revised roster for May 4 to July 4 shows that Justice Kayani will sit as a single judge at the bench where 27 single benches and nine division benches have been constituted, as announced by Additional Registrar (Judicial) Shabbir Hussain Shah.
At PHC, Justice Sattar has been included in the 4th-7th. May list and will sit on a division bench at the headquarters on Monday along with Justice Wiqar Ahmad.
The PHC list, approved by Chief Justice SM Attique Shah, shows nine single benches and one division bench.
In its arguments, the petition questions the legality of the transfers under Article 200 of the Constitution, stating that the exercise of such powers without defined criteria “makes the process arbitrary, non-transparent and liable to be overruled”.
It also raises constitutional concerns linked to the 27th Amendment, arguing that amendments affecting judicial jurisdiction were illegal, describing the amendment as “a fraud on the electorate”, while arguing that Parliament lacked the mandate to enact such measures.
The plea further challenges the transfer of the SC’s jurisdiction to a newly created Federal Constitutional Court, questioning whether such a court can adjudicate cases relating to its own creation.
It reiterates that “in the absence of disclosed reasons, criteria or demonstrable institutional necessity, transfers of judges … are illegal,” and warns that large-scale transfers without compensation have caused “institutional disruption” and risk eroding public confidence in the judiciary.
The petitioner has requested the Oversight Committee to declare the transfers unconstitutional and void and to issue directions clarifying the constitutional framework for judicial appointments and transfers.
