Islamabad:
In his disagreement note in Islamabad High Court (IHC) Judge transfers the case, Supreme Court Judge Shakeel Ahmad disagrees with the IHC Director’s judges that intelligence agencies have a role in issues relating to appointment or transfer of judge.
In February of this year, three judges from various high courts were transferred to IHC, a step followed by changes in the IHC Judges’ seniority list.
Five IHC referees first file representations against the transfer to the then IHC -Chief Justice Aamer Farooq. After rejection of representations, the judges turned to SC against the transfer.
The judges claimed that the transfers were asked by a written complaint submitted by them to the then Chief Justice of Pakistan, Qazi Faez Isa, of alleged interference of intelligence agencies in IHC affairs.
On June 19, a five-member constitutional bench (CB) of SC through a majority declared that the transfer of judges to IHC was not constitutional.
Justice Naeem Akhtar Afghan and Justice Shakeel Ahmad dissented from the Majority Order. In the 23-page disagree, however, justice Shakeel Ahmad disagreed with the claim that new judges were transferred to IHC at the request of intelligence agencies.
“This argument does not appeal to me as the intelligence agencies have no constitutional role in issues relating to the appointment or transfer of judges,” he said.
Justice Ahmad stated that the armed forces, under the oath prescribed in Article 244, read with the third schedule of the Constitution are bound to bear true faith and allegiance to Pakistan and maintain the Constitution that embodies people’s will.
“Each member confirms that they must serve Pakistan honestly and faithfully in the army, the Navy or Air Force in accordance with the law.” The judge also declared that this oath imposes a binding obligation to abstain from any political involvement.
“In addition, Article 245 (2) of the Constitution does.
“Any behavior that is in contrast to these constitutional obligations would constitute a breach of their oaths and a deviation from the role the Constitution has imagined,” he added.
The judge also stated that in the country’s greater interest in faith in the rule of law and in unwavering defense of constitutionity, the bound obligation for all institutions is to ensure that short -term convenience does not become a precedent for permanent erosion.
However, Justice Ahmad noted that the permanent transfer of one judge from one Supreme Court to another, especially when it disturbs established seniority in the Transferee Court, not only amounts to a personal injury before the judges before such a court, but also to a structural threat to the independence of the court.
He said that articles 2-A and 175 of the Constitution confirm this principle, while the oath required under Articles 178 and 195 read with the third schedule-managed to any Chief Justice and Judge of the Supreme Court and High Court-Binder them to perform their duties “Without Fear or Favor, Love or Badly Will.”
“This strengthens the legislative intention of achieving an independent judiciary. Yet, these words risk becoming a hollow if the executive power retains the power to reward or harm a judge through permanent transfer.”
Justice Shakeel Ahmad reiterated that the permanent transfer of a judge, especially when it changes the seniority structure of the Transferee Court, poses both a personal and institutional threat to judicial independence.
“Each Supreme Court in Pakistan is constitutionally distinct and independent of another, led by his own Chief Justice and guided by his own seniority list. To confuse them or allow one to override the other is to blur these basic distinctions.
“This also strengthens that any transfer under Article 200 of the Constitution is not intended to be permanent, for duration in this context would undermine both structure and spirit.”
“The Constitution reflects a deep legislative concern for legal independence with extensive debate set aside to secure it. In order for the judiciary to remain over blaming, its judges must be free of political pressure and irresistible integrity.”
He also noted that these events overall reveal a troubled pattern for hasty decision making, selective disclosure and unnecessary interference. The process removed by transparency and justice seemed to have served an external purpose – one that compromised independence and the internal balance of IHC.
The judge said it is extremely important to remind ourselves that the concept of independence is not only limited to freedom from executive interference. It is far more extensive – careful immunity from all kinds of pressure, whether political, economic, social or ideological.
“It also includes freedom from parties that can arise from the background, class or other attachments that judge themselves may have.
“The independence of the judiciary stands as the cornerstone of our constitutional order. It must be a well -structured, resolute and responsive, while being equipped to quickly tackle public complaints and to dispense justice with courage, clarity and unshakable impartiality.
“An effective and impartial judiciary cares for a legal environment where peace prevails, the rights are protected, and justice knows no bias of caste, creed, color, culture or gender.
“Such an environment not only maintains the dignity of individuals and groups, but also lays the basis for sustained economic progress and social development, as recognized in the Zafar Ali Shah case.
“The judges must be tempered with resilient will and unshakable integrity, because on their shoulders rests the duty to maintain the rule of law – an unlimited doctrine under which no one, whether or not they are exalted, is above the law.”
Justice Shakeel Ahmad noted that the Law Ministry’s summary did not meet the implications of seniority and the requirement of a fresh oath for the transferee judges.
This omission, he said, suggested that complete and accurate information was not placed for Chief Justice of Pakistan, the most important justice of the respective high courts, or even the transferee judging themselves.
“Such a hide points to Mala Fide-Intention, possibly to marginalize the senior-most judges in IHC, influence its institutional composition or manipulate the process of appointing its Supreme Court.
“This transfer had a direct impact on the seniority list and the composition of IHC’s administrative committees, both central to maintain legal integrity.
“In my opinion, the conscious detention of information relating to seniority and oath requirements, a violation of the rule of justice and undermines the principles of transparency and legal independence,” he added.
