Islamabad:
The Supreme Court ruled that the Constitution grants the President the authority to transfer to a judge from one court superior to another under certain conditions.
A Constitutional Bank (CB) of the Apex Court has presented its detailed order on the requests presented against the transfer of three judges to the Superior Court of Islamabad (IHC) in February of this year.
On February 1, the Ministry of Law issued a notification for the transfer of Judge Sardar Muhammad Sarfraz Dogar, Judge Khadim Hussain Soomro and Judge Muhammad Asif, respectively of the Superior Court of Lahore, the Superior Court of Sindh and the Superior Court of Baluchistan, to the IHC.
After this transfer, backed by the president, the IHC issued a new list of seniority, classifying Justice Dogar as a senior judge of Puisne. Five IHC judges presented representations against this seniority list.
However, the then president of the Supreme Court of IHC, Aamer Farooq, rejected these representations. The judges of IHC and some other petitioners, including Imran Khan, challenged the notification of the Ministry and the new seniority list in the Supreme Court, whose CB of five members heard the matter.
On June 19, the CB led by Judge Muhammad Ali Mazhar declared that the transfer of the three judges was not unconstitutional with a majority decision of 3 to 2.
The majority opinion was supported by Judge Mazhar, Judge Shahid Bilal and Judge Salahuddin Panhwar. However, Judge Naeem Akhtar Afghan and Shakeel Ahmad dissected the majority decision. The majority judges have now presented a detailed order of 55 pages.
In the majority order, written by Judge Mazhar, the CB recognized that, according to the Constitution, a judge of the Superior Court could be transferred to another superior court by the President. “However, I read in article 200 an important limitation: only a transfer can be made in public interest, not as a punitive measure or for political purposes.”
He said that a non -consensual transfer, especially together with the forced retirement in the refusal, militated against the concept of independence of the Judiciary and effectively equals an election of the elimination process under article 209.
The verdict said that the introduction of provisions in the Constitution for the transfer of a judge of the Court superior to another superior court without its consent and also the appointment of a judge of a court superior to the Federal Shariat court without its consent, in danger of being considered retired in case of rejection will be unconstitutional.
“[Similarly introduction of a] Provision related to the nomination of a judge of the court superior to any of its banks there are amendments/additions [to the Constitution] that militates against the concept of independence/separation of the Judiciary as provided by the Constitution, “he added.
The petitioners had opposed the entire transfer action as illegal and unconstitutional.
They had also argued that the transferred judges did not make a fresh oath.
When addressing the objections, the verdict also declared that according to the scheme of the Constitution, if a judge is transferred to another superior court, it cannot be treated as a new appointment.
He said that if a person becomes a judge of a superior court, he continues to occupy the office to the retirement age unless he renounces before or removes the position. “Then, for all practical purposes, if a judge is transferred to another superior court, it does not enter a new office,” said the verdict.
