Petition urges SC to annul transfers of judges and clarify constitutional rules on judicial appointments
Justice Babar Sattar (L), Justice Saman Riffat Imtiaz (m) and Justice Mohsin Akhtar Kayani. Photos: IHC website
ISLAMABAD:
A petition filed in the Supreme Court on Thursday challenged the transfer of three judges of the Islamabad High Court, arguing that the move violated Article 2A of the Constitution and undermined judicial independence.
The appeal, filed by Lahore Bar Association president Irfan Hayat Bajwa through senior lawyer Hamid Khan, claimed that the transfers were carried out “without any publicly disclosed reason, criteria or demonstrable institutional need” and alleged a “lack of transparency and absence of procedural safeguards”.
The Judicial Commission of Pakistan (JCP) on Tuesday approved the inter-provincial transfer of Justice Mohsin Akhtar Kayani to Lahore High Court (LHC), Justice Babar Sattar to Peshawar High Court (PHC) and Justice Saman Rafat Imtiaz to Sindh High Court (SHC).
Read: ‘Outspoken’ trio of transferred IHC judges
“The meetings were convened by the Secretary of the Judicial Commission of Pakistan in exercise of the powers conferred by Clause (22) of Article 175A of the Constitution, as the Chairman of the Commission, while giving reasons therefor, refused to convene the meeting on the request of one-third of the total members,” the Supreme Court said in a statement on Wednesday.
The statement said that the PCJ deliberated on several transfer proposals, and that the presidents of the high courts involved participated as members of the commission. Transfer decisions were made in accordance with the powers granted by the Constitution and the procedural rules of the JCP.
Furthermore, the members who had requisitioned them withdrew proposals for the transfer of Justice Arbab Tahir and Justice Khadim Hussain Soomro. The commission also decided, by majority, that any vacancies created by a judge’s transfer would be filled by new transfers, rather than initial appointments.
The petition argued that judicial independence was part of the “basic features” of the Constitution and claimed that any erosion of it “undermines the Constitution.”
Furthermore, it questioned the legality of the transfers under Article 200, stating that the exercise of such power without defined criteria “makes the process arbitrary, opaque and susceptible to being annulled.”
The petition also raised broader constitutional issues regarding the 27th Constitutional Amendment, arguing that changes affecting judicial jurisdiction were unconstitutional. He claimed the amendment “was a fraud on the electorate” and claimed Parliament lacked the mandate for such changes.
Among other arguments, the petition argued that the jurisdiction of the Supreme Court could not be transferred to a newly created Federal Constitutional Court and questioned whether such a court could hear matters related to its own creation.
He further stated that “in the absence of revealed reasons, criteria or demonstrable institutional need, transfers of Judges… are illegal.” The petition also argued that large-scale transfers without replacement had caused “institutional disorganization” and could erode public confidence in the judiciary.
The petition asked the Supreme Court to declare the transfers unconstitutional and void, and sought instructions on the interpretation of constitutional provisions governing judicial appointments and transfers.
Discord in the ranks of IHC
This marks the first instance in which the 27th Amendment, passed in November of last year, applies directly to the superior courts. This follows amendments to Article 200, which remove the requirement to obtain a judge’s consent before transfer and enable the relocation of high court judges between provinces on the recommendation of the Judicial Commission.
The three judges who were transferred were also among the six Islamabad High Court judges who had written a letter to the Supreme Judicial Council, seeking guidance on how to counter alleged interference by intelligence agencies in their affairs.
In early February, when Justice Sardar Sarfraz Dogar was elevated to the post of Chief Justice of the Islamabad High Court from the Lahore High Court, the same three judges were among a group of five who refused to accept his promotion. They expressed concerns about his seniority and questioned the legitimacy of his appointment.
Despite these reservations, Justice Dogar was sworn in as Chief Justice of the Islamabad High Court just a week later. However, the five judges who had raised concerns did not attend the swearing-in ceremony, despite being formally invited.
Read more: The president approves the controversial transfer of three IHC judges
Babar Sattar, a prominent legal analyst known for his outspoken opinions, was part of Justice Qazi Faez Isa’s legal team that had challenged the presidential reference filed against him.
The IHC suffered another setback last year when Justice Saman, who had headed the harassment committee of the Islamabad High Court, was removed from office after hearing a complaint filed by lawyer Imaan Mazari. The complaint followed a verbal altercation in court involving Islamabad High Court Chief Justice Sarfraz Dogar.
The complaint called for an investigation under the Protection from Harassment of Women in the Workplace Act to determine whether the chief justice had made threatening or gender-based comments toward Mazari. Instead, Judge Saman was removed from office and Judge Inaam Ameen Minhas was appointed as the new head of the court’s harassment committee.
Justice Kayani, a judge known for his rulings, particularly on human rights issues, was elevated to the bench of the Islamabad High Court in December 2015. Over the years, he has presided over several important cases, especially those related to enforced disappearances.
In a landmark verdict delivered in March this year, through a 28-page written judgment, Justice Kayani ruled that in case of divorce, the husband is legally obliged to return the entire dowry to the wife. He declared that these assets, along with the wedding gifts, remain the exclusive property of the woman.
The ruling further held that women are entitled to an equal share of property acquired during marriage, which must be divided equally between spouses in cases of divorce or death.
Judge Kayani has also been an outspoken critic of the 27th Amendment and referred to it during its passage last year.
During a hearing related to the Council of Islamic Ideology (CII), he observed that while the amendment was underway, the council could also have taken the opportunity to expand its authority. He joked that the CII could have submitted its proposals, suggesting that its powers could also have been enhanced.
