Islamabad:
Judge Muhammad Ali Mazhar, a member of the Constitutional Bank of the Supreme Court, commented on Wednesday that three main judges had given their consent for judicial transfers in question. He added that the president of the Supreme Court Yahya Afridi had provided a detailed explanation of the federal structure of the Superior Court of Islamabad (IHC) in this context.
Judge Mazhar made these observations while running a five -member bank who listened to a series of requests that challenge antiquity between the five seated judges, namely, Judges Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan and Saman Rafat Imtiaz.
The five judges have jointly requested the Apex Court, arguing that the three transferred judges should not be considered IHC judges until they provide a new oath under article 194 of the Constitution, read in conjunction with Annex III.
Judge Sardar Muhammad Sarfraz Dogar, Judge Khadim Hussain Soomro and Judge Muhammad Asif were transferred from the higher courts of Lahore, Sindh and Baluchistan respectively on February 1 through a notification issued by the president of Pakistan under article 200 (1) of the Constitution.
During Wednesday’s hearing, Senior Munir lawyer to Malik, who represents the five judges, argued that the transfer of a judge is an executive law and, therefore, subject to a judicial review.
He argued that the summaries for the transfer were sent to the president without the approval of the cabinet, referring to the ruling of the Supreme Court in the Impex Mustafa case, which emphasized the constitutional requirements for executive decisions.
Judge Naeem Akhtar Afghan commented that the Mustafa Impex Nullified section 16 (2) of the business rules, which, was not directly related to the process of transfer of the judges.
Malik’s lawyer cited the presidential reference case Qazi Faez Isa, where the Supreme Court had emphasized the president’s obligation to apply an independent mind to judicial affairs.
He said the judges transferred summaries reflected that the president and the prime minister gave their approval the same day. He affirmed that the Judiciary was not consulted before issuing transfer notifications and that the summaries were not enrupted through the Judiciary.
Judge Mazhar commented that three main judges had expressed their consent for transfers in question. In addition, he pointed out that the president of the Supreme Court Yahya Afridi had elaborated the federal structure of the IHC in this regard.
Munir A Malik argued that when the summary was sent, the oath or seniority was not mentioned. He said that after the approval of the summary, the notification declared that there was no need to take a new oath.
Judge Mazhar commented that article 200 of the Constitution, which governs the transfer of judges, reference was made in the notification. He pointed out that the consultation between the judges would have taken place. He said that the oath was not mentioned in the notification.
Munir A Malik argued that the justification for transfers mentioned the proportional representation of Punjab. He pointed out that Judge Aamer Faooq, Judge Babar Sattar and Judge Ejaz Ishaq Khan, all domiciled by Punjab, were already serving the IHC. He said transfers were part of a previously planned effort to master the IHC.
Later, the audience of the case was postponed until May 7.
