Senator Barrister Ali Zafar — while citing the “controversy surrounding the seniority of the Islamabad High Court (IHC) judges” — requested Chief Justice of Pakistan (CJP) Yahya Afridi to postpone the meeting of the Judicial Commission of Pakistan scheduled for tomorrow, it emerged on Sunday.
The IHC was recently subject to the transfer of three judges from other high courts to its ranks. Subsequently, Justice Mohsin Akhtar Kayani, who was senior puisne judge at the IHC before Justice Sarfaraz Dogar’s transfer, was removed from the top decision-making committee days, along with a number of other notifications and measures that reshuffled the high court’s seniority list.
Before these transfers, five out of 10 IHC judges had penned a strongly worded letter to the president and the CJP besides other high courts’ chief justices, opposing the new inclusions. On Tuesday, these judges sent a representation to Justice Farooq and CJP Yahya Afridi against placing them down on the seniority list.
The development sparked discussions within the legal community regarding judicial appointments and seniority criteria. Four Supreme Court (SC) justices — Justice Mansoor Ali Shah and Justices Munib Akhtar, Athar Minallah and Ayesha Malik — also referred to the issues affecting the IHC in a letter to CJP Afridi.
In a letter dated Feb 8, seen by Dawn.com, PTI leader Zafar requested a postponement of the JCP meeting scheduled to be held tomorrow, stating that he was “concerned with the controversy surrounding the seniority of IHC judges”.
It said that it was “deeply concerning that serious objections in writing have been raised” by judges from the SC and the IHC, adding that “the subsequent creation of a new seniority roster seriously undermines the perception of independence of [the] judiciary”.
“It is also gravely concerning that these objections have exposed the transferred judges to unjust criticism pertaining to their impartiality and integrity,” it said.
“The constitutional provisions relating to the transfer and issue of seniority should be given a harmonious interpretation,” it added.
It said that there were “perception(s) among the general public and many in the legal community” that the developments may be linked to high-profile appeals of PTI founder Imran Khan and his spouse, Bushra Bibi.
“To ward off such perceptions and uphold public trust, it is important for the JCP to act with heightened care, caution and transparency,” the letter said.
It said that the JCP meeting for the appointment of judges to the SC has a “direct nexus with the issue at hand”.
The JCP meeting would lead to the appointment of judges to the SC and it would need to be ascertained as to who shall be eligible, “the existing senior-most judges of the IHC prior to the new roster or the senior-most judges of the IHC as per the new roster”, it said.
“Moreover, if the chief justice of IHC is appointed as judge of SC, the post of CJ IHC would become vacant,” it said.
The letter said, “The question of who is eligible for such appointment as chief justice of Islamabad High Court according to seniority will then become also very relevant,” adding that these “questions must be answered before decisive steps are taken”.
Barrister Zafar strongly urged that the meeting of JCP be postponed “until the matter of seniority of judges of IHC is decided and resolved”.
It said that if the commission must proceed with the meeting, the commission “must resolve not to consider any of the judges transferred” to the IHC eligible for appointment as the CJ IHC or an SC judge.
The JCP is set to meet tomorrow to consider filling eight vacant seats of judges at the SC. The JCP approves judicial appointments. It was reconstituted to include four members of parliament by the Constitution (Twenty-sixth Amendment) Act, 2024, which brought numerous changes pertaining to the judiciary.
The SC’s Constitutional Bench has taken up challenges to the amendment however there are various calls for a full court to hear the matter.
