ISLAMABAD: Justice Naeem Akhtar Afghan of the Supreme Court on Friday expressed regret that the process of transferring three “particular” judges to the Islamabad High Court (IHC) from different high courts was carried out by the law ministry with undue haste, which, in his view, was against the public interest.
Prima facie, the purpose of this hurried move was to deprive then senior puisne IHC judge, Justice Mohsin Akhtar Kayani, of his rightful consideration for appointment as Chief Justice (CJ) of IHC, and to take over control of both the IHC and the district Judiciary of Islamabad Capital Territory (ICT) from the sitting judges, Justice Afghan observed in his dissenting note.
Justice Afghan was part of the five-judge constitutional bench that heard the case concerning the seniority issue of IHC judges.
By a majority of three to two, the constitutional bench, headed by Justice Muhammad Ali Mazhar, upheld on June 19 the transfer of three judges to IHC from different high courts, holding the move within the constitutional framework. However, the matter was remanded to the President to determine the inter-se seniority of the judges based on their service records.
In 40-page reasoning, SC judge says short-term gains secured by violating the Constitution ‘harm the nation’
Justice Afghan, along with Justice Shakeel Ahmed, dissented, describing the permanent transfer of three judges from the Lahore High Court (LHC), Sindh High Court (SHC), and Balochistan High Court (BHC) as a wrongful exercise of discretion under Article 200(1) of the Constitution, effectively rendering Article 175A redundant.
In a joint petition before the SC, Justices Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan, and Saman Raffat Imtiaz of the IHC argued that the three transferred judges should not be treated as IHC judges unless they took a fresh oath under Article 194, read with Schedule III of the Constitution.
Justice Afghan, in a 40-page detailed reasoning, regretted that the transfers were executed with the objective of handing over control of both the high court and the subordinate judiciary to the transferee judges, under the supervision of Justice Sardar Muhammad Sarfraz Dogar — then senior puisne judge at IHC, and now its chief justice.
Justice Afghan said strict adherence to the constitution by all organs of the state and institutions was the only way to ensure Pakistan’s prosperity and protect national interests. He cautioned that arbitrary executive actions must always be avoided.
“Short-term gains achieved by violating the Constitution will always undermine the nation’s long-term interests in stability, legitimacy, and the rule of law,” he observed.
On the interpretation of Article 200(1) and (2), under which the transfers were carried out, Justice Afghan stated that applying the doctrine of harmonious construction makes it clear that the provision expects the President, when exercising discretion, to allow transfers for a limited tenure. Such tenure entitles the transferee judge to allowances and privileges in addition to salary, as determined by the President.
Justice Afghan clarified that in legal parlance, an action driven by ulterior motives is tainted with malice in fact. “Where an action taken is so unreasonable, improbable, or blatantly illegal that it ceases to be contemplated by the law under which it is purportedly taken, malice will be implied, and the act would be deemed to suffer from malice in law,” he wrote in his dissent.
He stressed that interpretation of the Constitution rests with the judiciary, which has the prerogative and duty to carry out judicial review. This, he emphasised, is a basic feature of the Constitution.
The judiciary, he added, is empowered to test the validity of every authority’s action under the Constitution. It is therefore its duty to ensure the legality of executive actions so that the rights of the people remain protected against arbitrary violations.
Published in Dawn, October 4th, 2025