Islamabad:
Justice Muhammad Ali Mazhar on Monday raised questions about the claim that the transfer of three provincial Supreme Court’s judges to Islamabad High Court (IHC) was involved in part of the executive in legal affairs and noted that any transfer was made after approving four different judges.
Some members of the constitutional bench (CB) of the Supreme Court, which heard petitions filed against the transfer, and the subsequent change in the IHC judges’ seniority list, held that the executive director held the most important judge – by Pakistan and respective high courts – in the dark on the seniority question. On Monday, a five-member CB heard by Justice Mazhar, the judges’ transfer case heard.
During the hearing, Karachi Bar’s lawyer Faisal Siddiqi argued that IHC was established in accordance with Article 175 of the Constitution which relates only to the provinces of the appointment of judges.
He said judges cannot be transferred to IHC, and although a transfer occurs, it cannot be permanent, nor would a new oath be required by the return of this judge to his original Supreme Court. Justice Mazhar asked if Article 200 has become ineffective following the enforcement of Article 175-A. Siddiqi replied that under the current transfer system, the powers of the Legal Commission in Pakistan (JCP) are undermined, which is against the spirit of the Constitution.
Siddiqi declared that seniority develops over decades and manipulated with the overnight through executive powers is an authoritarian trait.
Justice Mazhar noticed that the transfer process involves approvals of four stages: approval by Chief Justice of the Conced High Court, approval of Chief Justice for the receiving Supreme Court, approval by the judge being transferred, and the approval of Pakistan’s Chief Justice.
“If any of them refuse, the transfer cannot continue. If the process was in the hands of the exercise, it would be another matter, but here it requires approval of four judicial forums.”
Siddiqi told the court that the transfer was made with poor faith and that the judiciary was kept in the dark about the sensitive question of seniority.
Attorney General of Pakistan (AGP) Mansoor Awan claimed that the transfer of judges under Article 200 may be permanent or temporary. A temporary transfer is mentioned in the message and comes with additional benefits, while a permanent transfer gives the judge the right to official stay.
Justice Shakeel Ahmed questioned whether the judges’ oaths and seniority should be decided by the Law Secretary. He asked if anyone had sought the lawyer’s statement on the case. “Why did the Law Secretary include clarifications on seniority and oath in the last summary?
He noted that the need for the Law Secretary to clarify that transferred judges do not need to raise a new oath raising concerns. The Supreme Court then postponed the hearing until today (Tuesday).
