Islamabad:
The Supreme Court has decided that the constitution gives the president authority to transfer a judge from one Supreme Court to another under certain conditions.
A constitutional bench (CB) from the Point Court has revealed its detailed order on petitions filed against the transfer of three judges to Islamabad High Court (IHC) in February this year.
On February 1, the Ministry of Law issued a notification of the transfer of justice Sardar Muhammad Sarfraz Dogar, Justice Khadim Hussain Somro and Justice Muhammad Asif – respected from Lahore High Court, Sindh High Court and Balochistan High Court – 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 constitutionally with a majority of 3 to 2.
The majority opinion was supported by Justice Mazhar, Justice Shahid Bilal and Justice Salahuddin Panhwar. However, Justice Naeem Akhtar Afghan and Shakeel Ahmad dissented from the majority decision. Majority judges have now revealed a detailed order of 55 pages.
In the majority order written by Justice Mazhar, CB acknowledged that a Supreme Court judge under the Constitution could be transferred to another Supreme Court by the president. “However, in Article 200, it read an important restriction: A transfer can only be made in the public interest, not as a punishing measure or for political objectives.”
It said a non-consensual transfer-Især combined with forced retirement of rejection military militias against the concept of the independence of the judiciary and effectively constitutes a circumvention of the removal process under Article 209.
The verdict said that the introduction of provisions in the Constitution for the transfer of a Supreme Court’s judge to another Supreme Court without his consent and also appointment of a Supreme Court’s judge to the federal Shariat court without his consent, by the danger of being considered retired in the event of a refusal.
“[Similarly introduction of a] Determination relating to nomination of a Supreme Court’s judge to any of its benches are changes/additions [to the Constitution] There are militiates against the concept of independence/separation of the judiciary, as planned by the constitution, ”added it.
The petries had opposed the entire action of the transfer as being illegal and constitutional.
They had also claimed that a fresh oath was not subsided by the transferred judges.
By tackling the objections, the verdict also stated that according to the Constitution scheme, if a judge is transferred to another Supreme Court, it cannot be treated as a new appointment.
It said that if a person becomes a judge of a Supreme Court, he continues to occupy the office until the super -decking age, unless he resigns earlier or removed from the Embed. “So for all practical purposes, if a judge is transferred to another Supreme Court, he does not go into a new office,” the verdict said.
