Islamabad:
In his dissident note in the case of transfer of the judges of the Superior Court of Islamabad (IHC), the judge of the Supreme Court Shakeel Ahmad does not agree with the claim of the judges of the IHC petitioners that the intelligence agencies have a role in matters related to the appointment or transfer of judges.
In February of this year, three judges of different higher courts were transferred to the IHC, a measure followed by changes in the seniority list of IHC judges.
Five IHC judges first present representations against the transfer to the then president of the Supreme Court of IHC Aamer Faooq. After the rejection of the representations, the judges approached the SC against the transfer.
The judges argued that the transfers were promoted by a written complaint filed by them to the then president of the Supreme Court of Pakistan, Qazi Faez Isa, with respect to the alleged interference of intelligence agencies in IHC affairs.
On June 19, a Constitutional Bank (CB) of five SC members declared through a majority vote that the transfer of IHC judges was not unconstitutional.
Judge Naeem Akhtar Afghan and Judge Shakeel Ahmad disseminated the majority order. However, in the 23 -page dissident order, Judge Shakeel Ahmad did not agree with the claim that the new judges were transferred to the IHC at the request of the intelligence agencies.
“This argument does not attract me, since intelligence agencies do not have a constitutional role in matters related to the appointment or transfer of judges,” he said.
Judge Ahmad declared that the Armed Forces, under the oath prescribed by article 244 read with the third schedule of the Constitution, are obliged to give true faith and loyalty to Pakistan and defend the Constitution, which embodies the will of the people.
“Each member affirms that they will serve Pakistan honestly and faithfully in the Army, the Navy or the Air Force in accordance with the law.” The judge also said that this oath imposes a binding obligation to refrain from any political participation.
“In addition, article 245 (1) of the Constitution makes it clear that the Armed Forces must act under the direction of the Federal Government to defend Pakistan against external aggression or the threat of war, and, subject to the law, act in the aid of civil power when they are asked to do so.
“Any behavior contrary to these constitutional obligations would be equivalent to a violation of its oath and a deviation of the role provided by the Constitution,” he added.
The judge also affirmed that, in a broader interest in the country, in fidelity to the rule of law, and in an unwavering defense of constitutionalism, it is the limited obligation of all institutions to ensure that transient convenience does not become a precedent for permanent erosion.
However, Judge Ahmad observed that the permanent transfer of a judge from one superior court to another, particularly when interrupting the antiquity established in the assignee court, is not only a personal injury to the judges of said court but also to a structural threat to judicial independence.
He said that articles 2-A and 175 of the Constitution affirm this principle, while the oath required by virtue of articles 178 and 195, read with the third schedule, administered to each president of the Supreme Court and the higher courts, considers them to discharge their duties “without fear or favor, condition or malie.”
“This reinforces the legislative intention to achieve an impartial judiciary. However, these words run the risk of becoming hollows if the Executive retains the power to reward or hurt a judge through the permanent transfer.”
Judge Shakeel Ahmad reiterated that the permanent transfer of a judge, especially when it alters the antiquity structure of the transferred court, raises a personal and institutional threat to judicial independence.
“Each Superior Court of Pakistan is constitutionally different and independent of another, headed by its own president of the Supreme Court and governed by its own seniority list. To combine them, or allow one to annul the other, it is to blur these fundamental distinctions.
“This also reinforces that any transfer under article 200 of the Constitution should not be permanent, since the permanence in this context would subvert both the structure and the spirit.”
“The Constitution reflects a deep legislative concern for judicial independence, with a broad debate dedicated to ensuring it. For the Judiciary to remain above the reproach, its judges must be free of political pressure and impeccable integrity.”
In addition, he pointed out that, together, these events reveal a worrying pattern of hurried decision -making, selective dissemination and improper interference. The process, stripped of transparency and justice, seemed to have had a hidden purpose, one that committed the independence and internal balance of the IHC.
The judge said that it is very important to remind us that the concept of independence is not simply limited to the freedom of executive interference. It is much more integral, which covers the immunity of all forms of pressure, whether political, economic, social or ideological.
“It also includes the freedom of prejudices that may arise from the background, the class or other affiliations that judges may have.
“The independence of the Judiciary is erected as the cornerstone of our constitutional order. It must be a well -structured, resolved and receptive body, while it is equipped to quickly address public complaints and dispense justice with courage, clarity and unwavering impartiality.
“An efficient and impartial judiciary encourages a legal environment where peace prevails, rights are safeguarded, and justice does not know caste bias, creed, color, culture or gender.
“Such an environment not only defends the dignity of individuals and groups, but also feels the basis for sustained economic progress and social development, as recognized in the Zafar Ali Shah case.
“The judges must be attenuated with resistant will and unwavering integrity, since on their shoulders rest the duty to defend the rule of law, an inflexible doctrine under which no one, exalted, is above the law.”
Judge Shakeel Ahmad said the summary of the Ministry of Law could not address the implications of antiquity and the requirement of a new oath for the assignee judges.
This omission, he said, suggested that no complete and precise information was placed before the president of the Supreme Court of Pakistan, the main judges of the respective higher courts, or even the judges themselves.
“Such concealment points towards the intention of bad relief, possibly to marginalize the most important judges of the IHC, influence their institutional composition or manipulate the process of appointing its president of the Supreme Court.
“This transfer had a direct relationship in the antiquity list and the composition of the IHC Administrative Committee, both centrals to maintain judicial integrity.
“In my opinion, the deliberate retention of information related to antiquity and the oath taking requirements is equivalent to a violation of the equity rule and undermines the principles of transparency and judicial independence,” he added.
