ISLAMABAD:
The newly formed Federal Constitutional Bench (FCC) is scheduled to hear intra-judicial appeals filed by five judges of the Islamabad High Court (IHC) against a split Supreme Court order upholding the transfer of three judges from different high courts to the IHC.
According to a list of cases released by the FCC, a six-member bench headed by Chief Justice Amin-ud-Din Khan will hear the intra-judicial appeal tomorrow (Monday) at 11:30 am
The bench also includes Justice Hasan Azhar Rizvi, Justice Ali Baqar Najafi, Justice KK Agha, Justice Rozi Khan Barrech and Justice Syed Arshad Hussain Shah.
However, the petitioning judges have challenged the decision to refer the case to the FCC, asking the newly formed court to return intrajudicial appeals to the Supreme Court.
They have argued that appeals were moved to the FCC under the 27th Constitutional Amendment, but the 27th Amendment itself is contrary to the Constitution.
They stated that the legislative, executive and judicial powers are created under the 1973 Constitution, which defines the separation of powers and the limits of each institution.
The petition stated that constitutional amendments cannot be used to abolish judicial authority and that Supreme Court rulings clearly uphold the principle of separation of powers.
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 decision 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.
