ISLAMABAD:
In a majority verdict, a constitutional bench (CB) of the Supreme Court on Thursday upheld the transfer of three provincial high court judges to the Islamabad High Court (IHC), noting that these transfers could not be declared new appointments.
However, the majority judges partially remanded the matter to the President of Pakistan to determine the seniority of the transferred judges after examining and vetting their service record “as soon as possible, including the question of whether the transfer is on a permanent or temporary basis”.
Two of the judges — Justice Naeem Akhtar Afghan and Justice Shakeel Ahmed — however, declared the notification for transfer of the judges “null, void and of no legal effect” in their minority order.
On February 1, the Ministry of Law issued a notification for the transfer of Justice Sardar Muhammad Sarfraz Dogar, Justice Khadim Hussain Soomro and Justice Muhammad Asif — respectively from the Lahore High Court, the Sindh High Court and the Balochistan High Court — to the IHC.
Following this transfer, endorsed by the president, the IHC issued a new seniority list, ranking Justice Dogar as the senior puisne judge. Five IHC judges filed representations against this seniority list.
However, the then IHC chief justice, Aamer Farooq rejected these representations. After elevation of Justice Farooq to the Supreme Court, Justice Dogar was also elevated as the IHC acting chief justice.
The IHC judges and some other petitioners including Imran Khan challenged the ministry’s notification as well the new seniority list in the Supreme Court, whose five-member CB heard the matter.
On Thursday, three members of the CBJustice Muhammad Ali Mazhar, Justice Shahid Bilal Hassan, and Justice Salahuddin Panhwar issued their short order, disposing of the petitions.
The order noted that the powers of the president under Sub-article (1) of Article 200 of the Constitution for the transfer of a judge and the provisions contained under Article 175A for appointment of judges by the Judicial Commission of Pakistan (JCP) are two distinct provisions dealing with different situations.
“Neither do they overlap nor override each other. The transfer of a judge by the President of Pakistan by means of Article 200 of the Constitution (permanently or temporarily) cannot be construed as a fresh appointment.
“Furthermore, the powers of transfer conferred to the President by none other than the framers of the Constitution cannot be questioned on the anvil or ground that if the posts were vacant in the IHC, then why they were not filled up by JCP through fresh appointments.
“One more important facet that cannot be lost sight of is that the transfer from one high court to another can only be made within the sanctioned strength, which can only be regarded as a mere transfer and does not amount to raising the sanctioned strength of a particular high court,” it said.
It noted that if it is presumed that all posts should be filled by the JCP alone through fresh appointments, then such interpretation or state of mind would not only go against the manifest intention of the framers of the Constitution but will also amount to negating or making redundant the substratum and existence of Article 200 of the Constitution.
“The article is absolutely not dependent, concomitant, or at the mercy of Article 175A of the Constitution, but is an independent and standalone provision dealing with the transfer of judges of a High Court (permanently or temporarily) and not the appointment of judges, which assignment has been incontrovertibly conferred to the JCP autonomously in terms of Article 175A of the Constitution.”
The majority judges, however, partially remanded the matter to the president, without upsetting the notification of transfer, to determine the seniority after examining/vetting the service record of the transferred judges, including the question of whether the transfer is on a permanent or temporary basis.
“Till such time that the seniority and nature of transfer (permanent or temporary) of the transferee judges is determined by the President of Pakistan by means of notification/order, Mr Justice Sardar Muhammad Sarfraz Dogar, already holding the office of Acting Chief Justice of the IHC, will continue to perform as the acting chief CJ,” they added.
The dissenting note
Justice Naeem Akhtar Afghan and Justice Shakeel Ahmed disagreed with the majority order and declared the notification for transfer of the judge null and void.
They stated that Clause (2) of Article 200 of the Constitution is subservient to Clause (1) of Article 200 of the Constitution and both are interconnected.
“According to the Doctrine of Harmonious Construction, while interpreting Clause (1) and Clause (2) of Article 200, both the clauses have to be harmonized and, being consistent with each other, have to be read in conjunction with each other for giving effect to both without creating conflict or absurdity”
“When Clause (1) and Clause (2) of Article 200 are read in conjunction with each other, it provides that when, in exercise of his discretion, the president transfers a judge from one high court to another, during the period for which he serves as a judge of the high court to which he is transferred, the judge so transferred is entitled to such allowances and privileges, in addition to his salary, as determined by the President.”
The order said the Attorney General for Pakistan conceded and categorically conveyed to the court on behalf of the Federation of Pakistan that the three Judges have been transferred on permanent basis.
It said Clause (1) and Clause (2) of Article 200, read in conjunction with each other, do not provide for permanent transfer of a judge from one high court to another and it provides for transfer of a judge a period — on temporary basis.
It said the permanent transfer of three judges to the IHC has been made in the wrong exercise of discretion under Clause (1) of Article 200 of the Constitution and has offended Article 175A of the Constitution, making it redundant.
“The process for permanent transfer of three judges to the IHC is suffering from concealment of relevant and material facts from the transferee Judges, from the chief justices of the IHC, LHC, SHC, BHC and from the Hon’ble Chief Justice of Pakistan (CJP)
“The process for permanent transfer of three judges to the IHC is also lacking meaningful, purposive and consensus oriented consultation with the chief justices of the IHC, LHC, SHC, BHC and Hon’ble CJP on all the relevant issues,” it added.
The minority order noted the intelligence agencies, including the ISI, have no role under the Constitution for appointment or transfer of Judges.
“Being subordinate to the executive, the intelligence agencies, including the ISI, cannot override the executive, the judiciary, the constitutional bodies and the constitutional office holders,” it added.
