ISLAMABAD: The sitting judges of the Islamabad High Court (IHC) have filed a miscellaneous petition before the Federal Constitutional Court (FCC) contesting the shifting of an intra-court appeal from the Supreme Court to the newly established constitutional forum.

The case pertains to the transfer of three judges from other high courts to the federal capital. In June, the SC’s constitutional bench had declared that their transfers were not unconstitutional. Subsequently, the five IHC judges had challenged the decision and filed an intra-court appeal. However, the intra-court appeal in the case has now been fixed before the FCC for hearing on Nov 24.

The application filed by IHC’s Justice Mohsin Akhtar Kayani, Justice Tariq Mehmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan and Justice Saman Rafat Imtiaz marks a significant legal move at a time when the 27th Amendment — under which the FCC has been established — is itself facing criticism and constitutional objections from multiple quarters, including senior members of the judiciary.

The IHC judges demanded that the intra-court appeal in the judges’ transfer case be returned to the SC, arguing that the FCC lacks constitutional authority to hear the matter. They stressed that the appeal had originally been filed before the SC, which remains the apex judicial body entrusted with appellate authority in such cases under the 1973 Constitution. They asserted that the transfer of the appeal to the federal court was a consequence of the 27th Amendment, which they claim is contrary to the spirit and structure of the Constitution.

IHC judges argue 27th Amendment’s validity is yet to be decided

Trichotomy of power

They argued that parliament despite having the power to amend the Constitution cannot exercise such power in a manner that undermines or dismantles the judiciary, noting that judicial independence forms part of the Constitution’s basic framework. They contended that the 1973 Constitution clearly delineates three fundamental pillars of the state — the legislature, the executive, and the judiciary — and specifies the limits and boundaries of their authority.

According to the petitioners, any constitutional amendment that disturbs this equilibrium or attempts to restrict or redistribute powers in a way that affects judicial independence is inherently unconstitutional.

The application cited multiple landmark SC judgements affirming the separation of powers, judicial autonomy, and the concept that no constitutional amendment may alter the basic structure of the Constitution. The judges argued that shifting appellate jurisdiction in sensitive judicial matters away from the SC amounts to diluting the authority of the judiciary as envisioned in the original constitutional design.

The judges emphasised that their intra-court appeal could not have been transferred to the FCC because the very amendment establishing the court was contentious and under legal scrutiny. “The 27th Amendment is against the Constitution,” the judges claimed, adding that an amendment could not be invoked to justify an action when its own validity was disputed.

The plea underscored that maintaining the appeal at the SC was the only legally sustainable option, particularly when the Amendment’s compatibility with the Constitution has yet to be conclusively decided. The judges insisted that appellate matters concerning judicial transfers, administrative decisions, and constitutional interpretation must remain within the SC’s exclusive domain until and unless the Amendment is upheld as lawful.

The case is scheduled for hearing before the FCC, but the newly filed miscellaneous petition by the IHC judges has placed the court in a position where it must first rule on the question of jurisdiction.

Published in Dawn, November 23rd, 2025