ISLAMABAD: The Supreme Court said that president of Pakistan has constitutional power to transfer judges from one High Court to another.
A five-member SC Constitutional Bench, headed by Justice Muhammad Ali Mazhar, on Friday, heard the petitions of Islamabad High Court (IHC) five judges, Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan, and Karachi and Lahore Bar Associations.
Faisal Siddiqui, appearing on behalf of Karachi Bar Association (KBA), argued that in India, the judges’ consent is not taken for their transfer from one High Court to another, and there is only one seniority list of all High Courts judges. He contended that in Pakistan, judges are appointed in High Courts, Federal Shariat Court and Supreme Court through Judicial Commission of Pakistan (JCP), and each High Court maintain its own seniority list.
‘Judges’ transfer issue will be resolved once IHC seniority dispute is settled’
Faisal stated that it is not a must for the president to transfer judges. Justice Mazhar responded that the president has the constitutional power to transfer the judges, and no one can force him for this. He then asked Faisal to keep focus of his arguments to the transfer of judges. Justice Naeem Akhtar Afghan told him that in the start of your arguments, you stated that he does not deny this fact that the president has the power to transfer the judges. Justice Salahuddin Panhwar asked the counsel that you have committed that you would confine your arguments only to the issue of seniority.
Faisal then said that his point is that the transfer of judges is temporary and time bound. Justice Mazhar asked the counsel to give reasons why transfer from one High Court to another is time bound, and whether there is time limit of transfer?
The Karachi Bar counsel contended that the judges in the Federal Shariat Court (FSC) are appointed from High Courts, and such appointments are for three years.
Justice Mazhar questioned how the appointment in the FSC relates to the instant matter, adding the High Court judges’ appointment in the FSC is in fact elevation.
Faisal questioned how come Justice Muhammad Asif, who an additional judge in his parent High Court, could be transferred to the IHC. He raised question whether the Judicial Commission can make Justice Asif permanent on his performance in the IHC, adding the JCP had appointed him as additional judge of the Balochistan High Court. A transferee judge cannot be made permanent in a High Court, other than his own High Court, he added.
Justice Mazhar questioned that if a transferred judge goes back to his original High Court then what would be his seniority. He said if a judge takes fresh oath of a High Court, where he is transferred then again there would be issue of his seniority. He said in India the judges’ seniority is decided, but here there is a problem.
Faisal Siddiqui argued that transferred judge’s seniority would not be affected if he goes back to the principal seat, adding taking another oath by transferee judge would also not affect his seniority in his parent High Court. He contended that there should difference between transfer and appointment. He said that the chief justice of a High Court cannot be transferred, but an acting CJ can.
The case was adjourned until May 26.
Copyright Business Recorder, 2025
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