ISLAMABAD: The Federal Constitutional Court (FCC) is set to hear on Monday an Intra-Court Appeal (ICA) filed by five judges of the Islamabad High Court (IHC) against the Supreme Court’s judgment on transfer of judges to the IHC.
A six-judge bench, headed by Amin-ud-Din Khan, and comprising Justice Syed Hasan Azhar Rizvi, Justice Ali Baqar Najafi, Justice Muhammad Karim Khan Agha, Justice Rozi Khan Barrech, and Justice Arshad Hussain Shah, will hear the appeal.
An interesting development took place on Saturday when five judges of the IHC filed a Civil Miscellaneous Application (CMA) before the FCC challenging the transfer of their intra-court appeal from the Supreme Court to the newly established Constitutional Court.
The application was filed by IHC’s Justice Mohsin Akhtar Kayani, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, Justice Saman Rafat Imtiaz, and Justice Tariq Mehmood Jahangiri.
The same five judges had filed the petitions against the transfer of three judges – Justice Sardar Muhammad Sarfraz Dogar from Lahore High Court, Justice Khadim Hussain Soomro from Sindh High Court, and Justice Muhammad Asif from Balochistan High Court – to the IHC, under Article 200 (1) of the Constitution.
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On 19 June 2025, the Supreme Court’s five-member bench announced its 3:2 judgment (Justice Muhammad Ali Mazhar, Justice Shahid Bilal Hassan, and Justice Salahuddin Panhwar) declared that transfer of judges under Article 200 is within the framework of the Constitution, and (permanently or temporarily) cannot be construed as a fresh appointment.
Without upsetting the notification of transfer of judges to the IHC, the Supreme Court’s bench remanded the matter of seniority to the President of Pakistan to determine the seniority after examining/ vetting the service record of the transferee judges as soon as possible, including the question of whether the transfers are made on a permanent or a temporary basis. The President thereafter had declared Justice Dogar as the most senior judge of the IHC, who later on became the IHC Chief Justice.
In the CMA, the IHC judges asked the FCC to return the intra-court appeal to the SC, arguing that the matter constitutionally falls within the jurisdiction of the apex court.
The petition stated that the appeal was shifted to the FCC under the 27th Constitutional Amendment, but contended that the amendment itself contradicted the Constitution.
The petitioners further argued that the Constitution clearly outlined the legislature, executive, and judiciary as the three essential pillars of the state and delineated limits and powers for each.
The judges maintained that while Parliament holds the authority to amend the Constitution, such powers could not be exercised to abolish, restructure, or fundamentally weaken the judiciary, which forms an integral component of the constitutional framework.
They further asserted that several apex court judgments affirm the separation of powers and the protection of judicial independence, insisting that the appellate jurisdiction in such matters remained with the Supreme Court unless expressly provided otherwise, without affecting the judiciary’s constitutional existence.
The petition stressed that transferring the appeal to the FCC based on the 27th Amendment is legally flawed since the amendment itself was under challenge for being inconsistent with the Constitution’s basic structure.
Copyright Business Recorder, 2025
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