Islamabad:
Two members of the Supreme Court’s constitutional bench (CB) have observed that the transfer of three judges from various high courts to Islamabad High Court (IHC) was occupied with evil and aimed to take control of IHC.
In a 40-page disagreement note written by Justice Naeem Akhtar-Afghan and approved by Justice Shakeel Ahmad, the judges have noticed that the permanent transfer of three judges to IHC had dealt with a “serious blow to the judges’ independence.”
On February 1, the Ministry of Law issued a notice of the transfer of justice Sardar Muhammad Sarfraz Dogar, Justice Khadim Hussain Somro and Justice Muhammad Asif – respectively from Lahore High Court (LHC), Sindh High Court (SHC) and Balochistan High Court (BHC) – to IHC.
After this transfer, approved by the president, IHC issued a new seniority list that ranked Justice Dogar as the Senior Puisne judge. Five IHC judges submitted representations against this seniority list.
However, the then IHC High Court, Aamer Farooq rejected these representations. The IHC judges and some other petitioners, including Imran Khan, challenged the Ministry’s review as well as the new seniority list in the Supreme Court, whose five-member CB heard the case.
On June 19, CB led by Justice Muhammad Ali Mazhar declared that the transfer of the three judges was not constitutional with a majority decision of 3 to 2. Justice Afghan and justice Ahmad, but dissented from the Majority Order.
The disagreement note said that the process of transferring three special judges to IHC was initiated and completed by the law with unnecessary haste -not in public interest, but Prima Facie, with the motive to deprive the then senior Puisne, Mohsin Akhtar Kayani, on consideration/appointment as IHC -high.
“[it also aimed at taking] Checking over the IHC and the District Service for [Islamabad] From the sitting judges in IHC, who instead handed it to the Transferee judges and additional judges under the supervision of Justice Dogar, first as Senior Puisne -Judge and later as functioning CJ and CJ for IHC. “
The disagreement said in the law that an act driven by external motives is in fact evil, while an act that is so unreasonable, unlikely or obviously illegal that it falls outside the framework of the law under which it is allegedly assumed constitutes vicious in the law. Both disagree judges found that the transfers in question actually suffered from evil as well as evil in the law.
They emphasized that the rule of law and strict adherence to the constitution of all state organs and institutions is the key to Pakistan’s prosperity and national interest. The executive orders, they warned, must fall within constitutional limits and should not be arbitrary or whimsical.
They warned the government that short -term gains achieved by violating the constitution would eventually undermine the nation’s long -term interests in stability, legitimacy and the rule of law.
They also observed that the post did not reveal any criteria for choosing the three Transferee judges to send to IHC.
“Justice Dogar was on the series No. 15 on the LHC seniority list, Justice Khadim Hussain Somro was on series No. 20 in SHC, while Justice Muhammad Asif had only recently been appointed a further judge of BHC on January 18, 2025.”
The disagreed judge wondered why all judges who were senior to Justice Dogar in LHC, Justice Somro in SHC, and Justice Asif in BHC were ignored or not considered for transfer to IHC.
They also noted that in all letters written by the Ministry of Justice seeking the consent of the Transferee judges and agreement from the High Court judges and Chief Justice of Pakistan, neither the transfer (permanent nor temporary) nor the question of seniority nor the fresh you mentioned. No input was sought from the relevant authorities.
They said that Chief Justice of Pakistan Yahya Afridi had also been held in the dark of the ministry about the nature of the transfers and the seniority of the transferee judge.
The memo also found that the President in accordance with Article 200 (2). 1 of the Constitution, the president may impose the transfer of a Supreme Court judge to another Supreme Court, but such a transfer may not be permanent and must be temporary.
“Instead of filling out the five available vacancies for judges in IHC, only two were completed on January 17, 2025, while three vacancies deliberately became unemployed to be filled subsequently by transferring three judges from different high courts under the Garb of the President’s discretionary powers under Article 200 (1),” noted Dissens.
The statement said that the transfers created turbulence within IHC that damaged collegiality among its judges and disturbed smooth function, thereby causing difficulties for litigation. They added that the transfers had frustrated the legitimate expectations of the sitting IHC judges.
