Islamabad:
Despite the approval of the Judicial Commission of Pakistan (JCP), through a thin margin of a vote, the nomination of Judge Sardar Sarfraz Dragar as the president of the Superior Court of Islamabad (IHC), Judge Syed Mansoor Ali Shah has raised serious constitutional concerns about the determination of the president of the senior of judges in the IHC.
The sources reveal that one day before the JCP meeting, Judge Shah addressed a letter to the Secretary of the Commission, expressing his reservations on a presidential notification dated June 27, which set the age of IHC judges.
In the letter, Judge Shah said: “With due deference, it seems that this action was taken without the constitutionally mandatory consultation with the honorable justice of Pakistan and the two respective main judges of the Superior Courts of article 200 of the Constitution.”
He said that, in his opinion, the consultation requirement was a binding constitutional mandate and was not a matter of executive discretion that could be conveniently marginalized.
The unilateral determination made without said consultation can lack legal validity, he said.
He added that, although the Supreme Court had ordered the President to decide on the age of the transferred judges, said compliance must still operate within the constitutional limits.
“The presidential action in question seems to have been improper, which raises concerns about transparency and the property of the process, concert that they can deserve constitutional scrutiny,” he warned.
Judge Shah also pointed out that article 200 of the Constitution contemplates the temporary transfer of judges, not a permanent relocation.
“To deal with a transfer as permanent, and consequently set the age of that basis, could raise serious constitutional questions, particularly when fundamental procedural safeguards seem to have been passed.”
For institutional caution, Judge Shah emphasized that the issues raised in his letter justified careful reflection before more measures were taken.
“I want to emphasize that these are preliminary concerns, and I remain completely respectful of the judicial process and the highest authority of the Pakistan Supreme Court to conclusive these issues conclusively,” he said.
He urged the JCP to delay its decision regarding the appointment of the President of the Supreme Court of IHC until the Supreme Court resolves the underlying constitutional problems.
“Proceed further at this stage can be risking fundamental constitutional principles, including the rule of law, the separation of powers and judicial independence,” he warned.
Judge Shah also requested that his letter be officially submitted to the Commission and its content registered in the minutes of the meeting.
He clarified that the presidential notification of June 27, 2025 required the letter, adding: “All observations made in the letter are attempts, offered without prejudice and are subject to the final determination by the Supreme Court on the constitutional matters currently relevant to consideration.”
Meanwhile, it is known that the president of the Supreme Court of Pakistan Yahya Afridi made a concerted effort to obtain support for the nomination of Judge Mian Gul Hassan as the president of the Supreme Court of IHC. However, his attempt was not successful.
In particular, Judge Aminuddin Khan, a judicial member, issued his vote in favor of Dargar Justice.
Former Judge Shaukat Aziz Siddiqui also strongly supported the nomination of Justice Dogar as IHC CJ.
The attention is now focusing when a Constitutional Bank Committee led by Judge Aminuddin Khan will schedule an hearing on the intra-Court appeal filed by five IHC judges. The appeal defies the previous support of the transfer of three judges from different courts higher than the Superior Court of Islamabad.
With the current summer holidays, the bank formation remains pending. Judge Jamal Khan Commandkhail refrained from the voting process.
The Bank’s final composition will be critical to determine the destination of the intra-couurt appeal presented by the five IHC judges.
Judge Shah is currently out of the country.
