ISLAMABAD, May 23 (Alliance News): The Supreme Court of Pakistan on Friday adjourned the hearing of the high-profile case concerning the transfer and seniority of Islamabad High Court (IHC) judges until Monday, May 26.
The constitutional bench, comprising five judges and headed by Justice Muhammad Ali Mazhar, resumed proceedings as Karachi Bar’s counsel, Faisal Siddiqi, continued his arguments.
He drew comparisons with India’s judicial system, stating that while judges in India are transferred without consent, their seniority remains intact.
Siddiqi maintained that although judicial appointments are mandatory for the Judicial Commission, the President of Pakistan is not bound to approve a judge’s transfer. However, Justice Mazhar clarified that under the Constitution, the President holds discretion in such matters and cannot be compelled to act.
Other members of the bench, including Justice Naeem Akhtar Afghan and Justice Salahuddin Panhwar, reminded Siddiqi that he had previously stated the presidential authority was not under challenge, and that his arguments should be limited to issues of seniority and transfer procedures.
Siddiqi argued that judicial transfers should be time-bound, referencing the three-year term of judges appointed to the Federal Shariat Court. But Justice Mazhar dismissed the analogy, explaining that such appointments are promotions, unlike lateral transfers between high courts.
The counsel questioned how Justice Asif, who was an additional judge at the time, could be transferred to the IHC without a fresh evaluation by the Judicial Commission. He cited the Al-Jehad Trust case and former Attorney General Munir A. Malik’s arguments to support his case.
Justice Mazhar raised a critical point regarding the requirement of a new oath for transferred judges and its implications for seniority. Siddiqi responded that each transfer and corresponding oath resets the judge’s service record, leading to potential inconsistencies and multiple seniority lists—a situation the court found problematic.
Justice Afghan questioned whether permanent appointments via transfer would undermine the Judicial Commission’s authority. He emphasized that no judge can perform judicial functions without taking an oath, and each new oath effectively replaces the previous one.
He further noted that Article 200 of the Constitution—which governs judicial transfers—was enacted before the establishment of the IHC. He pointed out that while the IHC Act allowed for appointments from all provinces, it did not mention transfers, suggesting that Parliament did not intend to allow such lateral appointments.
Justice Afghan also referred to a Judicial Commission meeting held ten days prior to the appointment of Justice Sarfraz Dogar, where the nomination of a Balochistan sessions judge, Raja Jawad Abbas, was considered and later dropped. He stated that the Attorney General must address this issue in the next hearing.
The court adjourned the case until May 26, when Faisal Siddiqi is expected to conclude his arguments.
