Transfer case: Counsel for judges fails to make convincing arguments?

ISLAMABAD: The Constitutional Bench did not seem to be convinced of Islamabad High Court (IHC) five judges’ lawyer’s arguments on executive role and cabinet approval for transfer of judges from one High Court to another.

A five-member SC Constitutional Bench, headed by Justice Muhammad Ali Mazhar, on Wednesday, heard the petitions of IHC five judges, Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan, and Karachi and Lahore Bar Associations regarding the transfer and seniority of the judges in the IHC.

Munir A Malik, representing the IHC judges, argued that Article 200(1) of the Constitution cannot be viewed in isolation and it must be read with Article 200 (2). He questioned the scope of the executive’s authority in transferring judges, saying; “The transfer of a judge is an executive action, but the question is how the executive exercises this authority? Are there any conditions attached?”

Justice Muhammad Ali Mazhar observed whether the executive’s authority to transfer judges could be subjected to judicial review. Malik replied in the affirmative, adding that the summary for the judges’ transfer was initially moved by the Law Ministry and later forwarded by the prime minister to the president— without prior cabinet approval.

He stated that the three approvals accorded by the President clearly show that the entire matter was never put up to the Cabinet, and the President while exercising his power under Article 200 did not apply his independent mind.

Highlighting the constitutional framework, Malik said Article 90 declared the prime minister as the chief executive of the country, who formulates policy and ensures its implementation.

Justice Naeem observed that Rule 60 of Rules of Business, cited by the counsel, does not specifically relate to judicial transfers. However, Munir reiterated that Article 90 of the constitution clearly empowers the chief executive officer with relevant authority.

During the proceeding, Justice Mazhar asked the IHC judges’ lawyer to conclude arguments today (Wednesday) so that from Monday (May 5) the counsels of other petitioners may present their case. Justice Mazhar explained that as one of the bench members had to leave for Karachi, the case had been scheduled early at 9:30 am. As on May 1 being a public holiday, the case would not resume until after that.

Meanwhile, IHC five judges submitted a written response, raising serious concerns over the federal government’s conduct in the judges’ transfer matter.

The federation, secretary Judicial Commission of Pakistan, the registrars of the Supreme Court and the IHC, Lahore High Court, Balochistan High Court and Sindh High Court have filed concise statements and placed certain documents on record last week.

The judges accused the federal government of misrepresenting facts regarding the transfers. The response states that the government falsely claimed there was a lack of provincial representation in the Islamabad High Court during consultations on the matter.

The judges further argued that the chief justice was not informed that the newly appointed judges would assume office without taking the oath—a key procedural lapse.

They also pointed to the timing of Justice Aamer Farooq’s proposed elevation to the Supreme Court, saying that his transfer immediately afterward appeared to be “meaningful.”

“We are not raising a personal grievance before the Supreme Court,” the response clarified. “The real question is whether the federal government can, in bad faith, undermine a high court in such a manner.”

It was an unconstitutional decision by the federation to allow the transferee judges to enter office in the IHC without taking oath thereof and grant seniority to them from the dates of their oaths in their original High Courts, they said.

They submitted that the whole process was conducted in undue haste and tainted with malafides and motivated by the Federation’s desire to punish the serving judges of the Islamabad High Court and effectuate a “takeover” of a High Court.

The hearing was adjourned until May 7.

Copyright Business Recorder, 2025