Islamabad:
The head of a Constitutional Bank (CB) of the hearing requests filed against the transfer of three judges to the Superior Court of Islamabad (IHC) and a subsequent change in the seniority list of the judges has indicated that the case under revision is the first of its kind.
During the hearing of the case, Judge Muhammad Ali Mazhar agreed with the lawyer of one of the petitioners, Barríster Salahuddin, that there is no precedent in the past for a permanent transfer of a judge from one court superior to another. “This is the first case of this type that involves such transfer,” he said.
Previously, lawyer Salahuddin argued that the headquarters of a judge cannot be unemployed through a transfer, and a permanent transfer would cause article 175-A of the Constitution to be ineffective.
Article 175a establishes the Judicial Commission of Pakistan (JCP), which is responsible for appointing the Judges of the Supreme Court, the Higher Courts and the Federal Court of the Shariat.
He said that according to article 200, only temporary transfers are allowed, and the JCP can only make permanent quotes.
Judge Mazhar said that according to article 175-A, new appointments can be made, and added that “appointment” and “transfer” have different meanings.
Salahuddin said that a significant consultation is essential in the transfer of any judge, and without it, the whole process is a mere formality. He claimed that the information was hidden and inaccurate details were provided during the transfer of three judges to the IHC in February of this year.
Judge Mazhar said that the case implies the interpretation of constitutional and legal points. He pointed out that three main judges were involved in the transfer process and not everything was in the hands of the Executive. The consent of the transferred judge is also obtained, he added.
Salahuddin referred to the rules of the civil service, stating that when two people are designated the same day, antiquity is determined by birth date, a principle that the SC has confirmed in a previous reference.
He also cited the Aslam Awan case, which required clear rules about judicial antiquity. Pakistan attorney general (AGP) Mansoor Awan declared that once the SC defines a principle, the rules will continue.
Salahuddin requested that the Supreme Court decide the case based on the rules of the civil service, the past precedents and the principle of equality.
Judge Mazhar asked what becomes the previous service of a judge if he makes a new oath after his transfer of one superior court to the other. “In India, even if a judge takes five oaths after the transfer, his specific age is not affected,” but Pakistan does not have a “all Pakistan’s picture.”
He said that the court is asking questions for clarity and informed trial, noting that when a judge of the Superior Court rises to the SC, its final payment certificate reflects 11 or 12 years of service.
Salahuddin replied that while the benefits and pension would be retained, the seniority of the judge would restart. He urged the court to consider the impact on the judges seated of the court who received the transferred judge.
It would be unfair, he said, that a judge held 16 in a court to become the highest judge in another, ahead of those who were previously older. The president of the Interim Supreme Court of IHC, Sardar Muhammad Sarfraz Dogar, one of the judges transferred to the IHC in February, held the 16th position in the Superior Court of Lahore.
Judge Mazhar reiterated that the judges of the Superior Court of Lahore did not raise such objections and told the lawyer to remain in matters related to IHC. He added that if the arguments conclude before June 16, the court can issue a short order after consultation with the judges on the same day.
The lawyer Salahuddin requested that the case be heard until the next day. Judge Naeem Akhtar Afghan said some judges in the bank would not be available. Judge Salahuddin Panhwar commented that refutation arguments may include questions. The audience was postponed until 9:30 am on June 16.
