The Supreme Court, in a majority decision delivered on Thursday, rejected the petitions challenging the transfer of judges from three high courts to the Islamabad High Court (IHC).
The matter originated in February when five sitting judges of the IHC invoked the Supreme Court’s original jurisdiction under Article 184(3) of the Constitution. Their petition challenged the appointment of Justice Sarfraz Dogar as the acting Chief Justice of the IHC and questioned the legality of the transfer of high court judges. The petitioners included Justice Mohsin Akhtar Kiyani, Justice Tariq Mehmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, and Justice Saman Riffat Imtiaz.
The 3-2 verdict was read by Justice Muhammad Ali Mazhar, who presided over the five-member constitutional bench. The bench also included Justices Naeem Akhtar Afghan, Shahid Bilal Hassan, Salahuddin Panhwar, and Shakeel Ahmed. The petitions had been filed by five judges of the IHC, the Karachi Bar Association, the IHC Bar Association, and others.
During the hearing, counsel for the founder of Pakistan Tehreek-e-Insaf (PTI), Idris Ashraf, argued that the Court should interpret the constitutional provisions harmoniously, highlighting a conflict between Article 200 and Article 175 of the Constitution.
Justice Muhammad Ali Mazhar remarked that the Judicial Commission does not have the authority to order transfers. The counsel responded that a permanent transfer cannot be made to a vacant judicial seat. The Attorney General submitted that the judge ranked third in seniority at the Islamabad High Court is enrolled with the Islamabad Bar Council.
Justice Naeem Akhtar Afghan inquired during the proceedings whether any judge had ever been transferred under Article 200 in the past. The Attorney General replied that there is no precedent for such transfers. He added that the role of the President and Prime Minister in the process of judicial transfers is limited, and that Chief Justices are also involved in the process. He further emphasized that the transfer of judges cannot be attributed to any mala fide intent.
Justice Muhammad Ali Mazhar observed that Article 200 sets out a comprehensive procedure for the transfer of judges.
The Attorney General noted that no challenge had been made to the Prime Minister’s advice or to the rules of business.
Advocate Munir A. Malik told the Court that he had never described the transferred judges as “deputationists.” In response, Justice Muhammad Ali Mazhar remarked that the petition itself refers to the judges as deputationists, and questioned how judges could be categorized in such a manner.
