Islamabad:

The Supreme Court on Tuesday investigated the procedure for the transfer of judges in India and noted that, unlike the neighboring country, Pakistan’s constitution requires the consent of a Supreme Court before they can be transferred to another Supreme Court.

A five-member constitutional bench (CB) led by Justice Muhammad Ali Mazhar resumed to hear several petitions challenging the transfer of three judges from provincial high courts to Islamabad High Court (IHC), as well as the subsequent change in the IHC judges’ Anciority List.

During the case, Hamid Khan, who represented the Lahore High Court Bar, continued his arguments and said that several legal aspects of the judges’ transfers from high courts need thorough treatment.

Justice Muhammad Ali Mazhar noted that in India there are no necessary judges’ consent to transfers, and such decisions are made in consultation with the Supreme Court of this State Supreme Court. “In our system, it is to get a judge’s consent to transfer a constitutional requirement,” he noted.

Justice Naeem Akhtar Afghan observed that India follows a unified cadence system for the Supreme Court judges, while Pakistan does not have a similar system for seniority. Justice Shakeel Ahmed added that in India the seniority list of the Supreme Court judges is uniform.

Hamid Khan claimed that consultation with Chief Justice in India is mandatory before any transfer. He said that consent is important when transferring judges and that under section 3 of the Islamabad High Court Act, consultation is required before a transfer or a new appointment.

“The choice of judges for transfer must be based on profits and that the executive branch should not have authority to nominate judges for transfer. This power must rest solely with Chief Justice,” he claimed.

Hamid Khan pointed out that instead of transferring judges to IHC, new agreements are often made. “In a recent case, IHC functioning Chief Justice was heard about the transfer of a judge from Balochistan, but the Council for transfers was not approved by the cabinet,” he added.

Idere’s Ashraf Advocate, who represented PTI founder Imran Khan, also presented his arguments. He stated that the transfer message did not mention the period of employment to the transferred judges and claimed that such transfers could lead to discrimination among judges within the same Supreme Court.

Justice Mazhar asked the lawyer if Article 25, which ensures equality for the law, should be considered in the process of the judges’ transfers. He also asked if the lawyer would be satisfied if the transfer period was determined after two years, noting that the core problem remains the question of seniority.

The court later postponed the hearing until 1 p.m. 9.30 today (Wednesday).