Islamabad:
Two members of the Constitutional Bank (CB) of the Supreme Court have observed that the transfer of three judges from different courts superior to the Superior Court of Islamabad (IHC) was contaminated by malice and aimed to take control of the IHC.
In a dissident 40 -page note written by Judge Naeem Akhtar Afghan and backed by Judge Shakeel Ahmad, the judges have indicated that the permanent transfer of three judges to the IHC had given a “serious blow to the independence of the judiciary.”
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 (LHC), the Superior Court of Sindh (SHC) and the Superior Court of Balochistan (BHC) 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. Afghan justice and justice Ahmad, however, they disincted from the majority order.
The dissident note said that the process to transfer three judges in particular to the IHC was initiated and completed by the Ministry of Law unnecessary, not of public interest but, Prima Facie, with the reason to deprive the then judge of Puisne, Mohsin Akhtar Kayani, of consideration/appointment as the justice of the IHC.
“[it also aimed at taking] IHC control and the Judicial Power of the district of [Islamabad] Of the judges sitting from the IHC, giving it to the assignee judges and additional judges under the supervision of the Doft Justice, first as a senior judge of Puisne and later as CJ and CJ of IHC “.
The dissident opinion said in the law, an action promoted by the hidden reasons constitutes malice in fact, while such an unreasonable, unlikely or blatantly illegal action that falls out of the reach of the law under which it is supposedly taken constitutes malice in the law. Both dissident judges argued that the transfers in question suffered from Malicia in fact, as well as malice.
They emphasized that the rule of law and strict adhesion to the constitution of all state bodies and institutions are key to the prosperity and national interest of Pakistan. Executive orders, they warned, must fall within the constitutional limits and should not be arbitrary or capricious.
They warned the government that the short -term profits achieved by violating the Constitution would finally undermine the nation’s long -term interests in stability, legitimacy and rule of law.
They also observed that the registration did not reveal criteria to select the three assignee judges to publish in the IHC.
“The Justice Dogar was in series No. 15 on the LHC Antiquity list, Judge Khadim Hussain Soomro was in Serial No. 20 in the SHC, while Judge Muhammad Asif had been appointed additional judge of the BHC on January 18, 2025”.
Dissident judges asked why all last year judges to justice to give the LHC, Judge Soomro in the SHC and Judge Asif in the BHC were ignored or not considered for the transfer to the IHC.
They also pointed out that in all the letters written by the Ministry of Law that seek the consent of the assignee judges and the concurrence of the main judges of the Superior Court and the president of the Supreme Court of Pakistan, nor was the nature of the transfer (permanent or temporary) or the question of antiquity or fresh oaths mentioned. No contributions from the relevant authorities were requested.
They said that the Ministry had also maintained in the dark of the president of the Supreme Court of Pakistan, Yahya Afridi, about the nature of the transfers and the antiquity of the judges of the census.
The note also argued that according to article 200 (1) of the Constitution, the President may order the transfer of a judge of the Court superior to another Superior Court, but said transfer cannot be permanent and must be temporary.
“Instead of filling the five vacancies available as judges in the IHC, only two were filled on January 17, 2025, while three vacancies were deliberately vacant to be filled later by transferring three judges of different higher courts under the attire of the discretionary powers of the President under article 200 (1),” said the dissent.
The opinion said that the transfers created turbulence within the IHC, damaging collegiality among their judges and interrupting soft functioning, which causes difficulties to litigants. They added that transfers had frustrated the legitimate expectations of IHC judges.
