ISLAMABAD: The Lahore High Court Bar Asso­­ciation (LHCBA) and the Lahore Bar Association (LBA) on Wednesday challenged the June 19 constitutional bench judgement that upheld transfer of three judges to the Islamabad High Court (IHC).

The two separate but iden­t­ical intra-court appe­als (ICA) were filed before the Supreme Court through senior counsel Hamid Khan and Muhammad Waqar Rana against the June 19 ruling.

The bar associations moved the apex court after five judges of the IHC — Justice Mohsin Akhtar Kayani, Justice Tariq Mehmood Jahangiri, Jus­tice Babar Sattar, Justice Sardar Ijaz Ishaq Khan and Justice Saman Rafat Imtiaz — challenged the same ruling before the SC on June 28.

In its decision, the constitutional bench, by a three to two majority, had held that the transfer of three judges from three different high courts to the IHC was within the framework of the Constitution. Less than two weeks after the decision, the Judicial Commission of Pakistan nominated Justice Sardar Muhammad Sarfraz Dogar as the permanent chief justice of the IHC and he was sworn in on July 8.

The fresh ICA requests the SC to set aside the June 19 judgement, arguing that it failed to resolve the key constitutional question regar­ding the requirement of taking an oath before assuming office as a judge of the IHC.

“It is an admitted fact that the transferred judges did not take oath upon their transfer to the IHC; therefore, they cannot legally assume office,” the petition stated. It added that the June 19 ruling was liable to be set aside as it failed to resolve the issue in essence.

The appeal contended that by remanding the matter to President Asif Ali Zardari, the majority judgment of June 19 effectively allowed the executive to rectify legal deficiencies in the Feb 1 notification, thereby facilitating executive to infringe upon the independence of the judiciary. The ruling, it claimed, violated the doctrine of trichotomy of powers.

It further argued that the June 19 order was against the law and all rules of fairness and thus void, without jurisdiction, coram non judice having been passed without lawful authority and thus of no legal effect.

The appellants submitted that all related actions as well as subsequent proceedings of the Judicial Commission of Pakistan regarding the IHC chief justice’s appointment were unconstitutional and must be declared void. The judgment, notifications and appointments were purportedly made in pursuance of the directions given in the judgment, the petition said.

It is an accepted principle of constitutional interpretation that all articles and legal provisions were aggregate formulations incorporating therein constitutional values/principles and structure, the petition said. A constitutional document is to be read as a whole to understand the underlying constitutional values, principles and objectives, it said.

It explained that the independence of the judiciary was a basic feature of the Constitution and must be protected from executive interference, especially in matters of appointment, transfer, and removal of judges. The Supreme Court recognise the independence of the judiciary as one of the basic features of the Constitution, the petition said, adding the appointments, transfer and removal of judges having been provided in different provisions of the Constitution.

Published in Dawn, July 10th, 2025