ISLAMABAD: Senior counsel representing the five sitting Islamabad High Court (IHC) judges told the Supreme Court’s constitutional bench on Wednesday that the President exercised his authority under Article 200 to transfer three judges on “factually inaccurate summaries aimed at taking over capital’s high court”.

“There was a deliberate and predetermined sch­e­me to take over IHC,” feared Muneer A. Malik on behalf of five IHC’s judges who have petitioned the SC on an inter-se seniority dispute.

The counsel will further dilate upon the aspect when the constitutional bench will meet again on May 7.

Headed by Justice Muhammad Ali Mazhar, the five-judge constitutional bench was hearing a set of petitions of five IHC judges namely Justice Mohsin Akhtar Kayani, Justice Tariq Mehmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan and Justice Saman Rafat Imtiaz have moved a joint petition before the Supreme Court with a plea not to treat the three transferred judges as IHC judges until they take a fresh oath under Article 194, read in conjunction with Schedule III of the Constitution.

The senior counsel also furnished a 37-page rejoinder to rebut federal gover­nm­ent’s statement before the bench contending that judges were transferred to IHC after six high court judges wrote a letter to the Supreme Judicial Comm­­ission (SJC) on March 25, 2024 complaining instances of executive’s interference in their judicial functions and attempts to intimate them and conduct their secret surveillance.

On Wednesday while going through summaries initiated for the transfer of the three judges to IHC from different high courts, the counsel emphasised that these summaries were approved by the Prime Minister as well as the President on the same day. Such mode of approval indicated that there was no independent application of mind on part of the President contrary to what was held in the 2021 Qazi Faez Isa reference case.

To substantiate, the cou­nsel cited the second summary of Jan 30, 2025 rela­ted to the transfer of the Balochistan High Court judge to IHC and pointed out that the summary was approved by the President as well as the Prime Minister on the same day in the same manner.

Referring to the initiation summaries moved by the law secretary to the registrars of the three high courts, the counsel highlighted that these summaries suggest that the representation of judges from Punjab was disproportionate to the total strength of 13 judges in the IHC whereas there was no judge in the IHC from the rural Sindh. The counsel highlighted that these summaries were initiated by the executive and not by the judiciary.

At this, Justice Muha­m­mad Ali Mazhar acknowledged that Justice Saman Rafat Imtiaz in the IHC belongs to Sindh, whe­reas Justice Salahuddin Panw­har reminded that the sum­mary has pointed out about the absence of any judge from the rural Sindh.

The counsel, however, reminded the court that Article 200 contemplated “meaningful and purposive” consultative process for the transfer of the judges from one high court to another.

As Justice Mazhar asked him to read out the concurrence of Chief Justice Yahya Afridi for the transfer of judges to the IHC, the counsel said he would not shy away from reading any document and then read out CJP’s approval for the transfer.

The chief justice in his Feb 1, 2025 opinion which was communicated thro­ugh the Supreme Court registrar had stated, “The proposed transfer of the three judges from the high courts of different federating units to IHC completely syncs with the spirit of the federalism as enshrined in the Constitution.”

“It is also in conformity with Section 3 of the Islamabad High Court Act 2010.” “The thoughtful consideration behind the proposal illustrates resolve in providing an equitable share to linguistic diversity of our country and fair chance of representation to all the federating units in the high court of the common capital of the federation ie IHC.”

“Notice none of these summaries addresses the issue of oath or seniority of the judges to be transferred to IHC,” the counsel emphasised.

But Justice Mazhar rem­inded that we don’t know about summaries regarding opinions of the chief justices of the respective high courts, adding may be CJP had consulted with the respective chief justices through phone calls.

“How CJP could give his consent unless he asked first from chief justices of the respective high courts,” Justice Mazhar observed.

But the counsel emphasised that even in that process the issue of seniority and oath of the transferred judges were side stepped and not touched upon.

“I must reiterate that there must have been some consultation between the CJP and chief justices of the high courts may be on phone giving the fact that CJP had given ample reasons in his concurrence,” observed Justice Mazhar.

The counsel contended that it was after and not before the concurrence, the summary to the Prime Minister said that no fresh oath was needed under Article 200 of the Constitution rather it was for the first time that these issues were addressed.

Justice Mazhar reminded that the summary was referring to Article 200 and it was a matter of interpretation.

The counsel contended that in the process of transfer of judges under Article 200, the judiciary has to be insulated from the executive and ought to have been approved by the Cabinet since the transfer was an act of the executive.

Published in Dawn, May 1st, 2025