ISLAMABAD:
The newly formed Federal Constitutional Court (FCC) on Monday dismissed intra-judicial appeals (ICA) filed by five judges of the Islamabad High Court (IHC) and the Karachi Bar Association (KBA) against the transfer of three judges to the IHC due to lack of prosecution.
However, the court granted time to lawyers representing Lahore Bar Association (LBA) and Lahore High Court Bar Association (LHCBA), as well as PTI founder Imran Khan’s lawyer against the transfers, and adjourned the hearing indefinitely.
A six-member FCC bench headed by Justice Amin-ud-Din Khan heard intra-judicial appeals against the decision upholding the transfers of Justice Sardar Sarfraz Dogar and other judges.
The bench also included Justice Hassan Azhar Rizvi, Justice Ali Baqar Najafi, Justice KK Agha Khan, Justice Rozi Khan Barrech and Justice Syed Arshad Hussain Shah.
On November 22, five IHC judges filed a petition with the FCC, requesting that their ICA in the judges’ transfer case be returned to the Supreme Court and heard by it.
In their application, the IHC judges raised serious and fundamental questions about the very legitimacy of the FCC. They argued that the appeals were moved to the FCC under the 27th Constitutional Amendment, but the 27th Amendment itself is contrary to the Constitution.
When the hearing began, IHC judges’ lawyer Munir A Malik did not appear. For lack of prosecution, the court dismissed the appeals.
Similarly, Faisal Siddiqi, a lawyer at the Karachi Bar Association and former president of the Islamabad Bar Association, was also absent, resulting in his appeal being dismissed as well.
Although Hamid Khan, the lawyer for the LBA and LHCBA, did not appear, his partner Ajmal Toor did appear and requested an adjournment. The court accepted the application and indefinitely adjourned intra-judicial appeals related to the LBA and LHCBA.
Idrees Ashraf, lawyer of the PTI founder, appeared and argued that his client was imprisoned in Adiala jail and needed to get fresh instructions.
He said they had challenged the short order earlier and after setting out detailed reasons, they now needed to make further submissions, for which meeting the client was essential.
He asked the court to issue directions allowing him to meet the PTI founder so that he could determine whether to withdraw the petition or challenge the decision on additional grounds. The lawyer also invoked Article 187, which refers to complete justice, and pleaded for its application in order to obtain instructions from Imran.
The chief justice responded that only the court that had sentenced the former prime minister had the authority to issue such instructions, and that the FCC could not do so. Idrees Ashraf requested additional time, which the court granted. The FCC subsequently adjourned the hearing indefinitely.
In February, the Ministry of Justice issued a notification for the transfer of Justice Sardar Muhammad Sarfraz Dogar, Justice Khadim Hussain Soomro and Justice Muhammad Asif, respectively, from the Lahore High Court, Sindh High Court and Balochistan High Court to the IHC.
Following this transfer, supported by the President, the IHC issued a new seniority list, classifying Justice Dogar as a senior judge.
Five IHC judges, Justice Mohsin Akhtar Kayani, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, Justice Saman Rafat Imtiaz and Justice Tariq Mehmood Jahangiri filed complaints against this seniority list. The then IHC Chief Justice Aamer Farooq rejected these representations.
The IHC judges and some other petitioners, including Imran Khan, challenged the ministry’s notification as well as the new seniority list in the Supreme Court, whose five-member constitutional bench (CB) heard the matter.
On June 19, a CB headed by Justice Muhammad Ali Mazhar declared that the transfer of the three judges was not unconstitutional with a majority of 3 to 2.
The majority opinion was supported by Justice Mazhar, Justice Shahid Bilal and Justice Salahuddin Panhwar. However, Justice Naeem Akhtar Afghan and Shakeel Ahmad dissented from the majority decision. The IHC judges filed an intra-judicial appeal against the order.
