ISLAMABAD: Five judges of the Islamabad High Court (IHC) have challenged the Supreme Court’s decision to uphold the transfer of three judges from other high courts to the federal capital.
The appeal was filed on Saturday, two days before the Judicial Commission of Pakistan’s (JCP) meeting to appoint chief justices to at least three high courts on July 1.
In its judgement announced on June 19, the Supreme Court’s Constitutional Bench, had held by a majority of 3-2 that the transfer of three judges to IHC from Punjab, Sindh and Balochistan high courts was within the framework of the Constitution.
The Constitutional Bench had also partially sent the matter to the president to determine seniority amongst judges, based on their service records.
Now, IHC’s justices Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ijaz Ishaq Khan and Saman Rafat Imtiaz, who originally challenged the transfers, have filed an intra-court appeal (ICA) against the June 19 judgement.
The ICA, jointly moved by senior counsel Muneer A. Malik and Barrister Salahuddin Ahmed, urged the court to set aside the order in the interest of justice.
While the appeal is heard, the Supreme Court should grant an interim relief against the judgment, the applicants pleaded.
The five judges have requested the Supreme Court not to consider justices Sardar Muhammad Sarfraz Dogar, Khadim Hussain Soomro and Muhammad Asif as judges of IHC until they take fresh oaths in accordance with Article 194 Justice Dogar is also the acting chief justice of IHC.
The appeal contended that Section 3 of the Islamabad High Court Act 2010 only provides for the appointment of judges to the IHC from other provinces but makes no reference to transfers.
The appeal contended that the June 19 order impermissibly reads in “permanent” in Article 200(1) and (2) of the Constitution when no such language was contained in the provision.
The appeal pleaded that the constitutional bench had misunderstood the provisions of Article 200 by reading sub-article (1) in isolation from other provisions of the article by not holding that transfers envisioned in Article 200(1) were only for a temporary and time-specified period.
The order also failed to interpret of articles 200 and 175A, without scuttling and undermining the powers of JCP under Article 175A of the Constitution, the appeal argued adding the independence of judiciary does not allow bestowing onto the executive a much more expansive power than what the text of Article 200 and the foundational principles of constitutional law can bear.
The concept of federalism also mandates that the provincial authority’s role in the permanent filling of vacancies of judges must not be usurped, it added.
The June 19 judgment had partially remanded the matter to the president to determine the seniority after examining the service record of the transferred judges as soon as possible, including the question of whether these transfers were permanent or temporary.
The powers of the president under Article 200(1) are two distinct provisions dealing with different situations and niceties and neither do they overlap nor override each other, the verdict explained, adding the transfer by the president by means of Article 200 cannot be construed as a fresh appointment, the judgment had held adding the powers of transfer conferred to the president by the framers of the Constitution cannot be questioned on the ground that if the posts were vacant in IHC then why they were not filled up by JCP through fresh appointments.
Published in Dawn, June 29th, 2025
