ISLAMABAD:
The newly formed Federal Constitutional Court (FCC) on Monday dismissed intra-court appeals (ICAs) filed by five Islamabad High Court (IHC) judges and the Karachi Bar Association (KBA) against the transfer of three judges to the IHC due to non-prosecution.
However, the court granted time to the lawyers representing the Lahore Bar Association (LBA) and Lahore High Court Bar Association (LHCBA), as well as the counsel for PTI founder Imran Khan against the transfers, and adjourned the hearing indefinitely.
A six-member FCC bench headed by Justice Amin-ud-Din Khan heard the intra-court appeals against the decision upholding the transfers of Justice Sardar Sarfraz Dogar and other judges.
The bench also included Justice Hassan Azhar Rizvi, Justice Ali Baqar Najafi, Justice KK Agha Khan, Justice Rozi Khan Barrech, and Justice Syed Arshad Hussain Shah.
Five IHC judges on November 22 submitted an application before the FCC, requesting that their ICA in the judges’ transfer case be returned to and heard by the Supreme Court.
In their application, the IHC judges raised serious and fundamental questions about the very legitimacy of the FCC. They argued that the appeals were shifted to the FCC under the 27th Constitutional Amendment, but the 27th Amendment itself is contrary to the Constitution.
When the hearing began, counsel for the IHC judges, Munir A Malik, did not appear. Due to non-prosecution, the court dismissed the appeals.
Similarly, Faisal Siddiqi, counsel for the Karachi Bar Association and a former president of the Islamabad Bar, was also absent, leading to the dismissal of their appeal as well.
Although Hamid Khan the lawyer for the LBA and the LHCBA did not appear, his associate Ajmal Toor appeared and requested an adjournment. The court accepted the request and adjourned the intra-court appeals related to the LBA and LHCBA indefinitely.
Idrees Ashraf, counsel for the founder of PTI, appeared and argued that his client was imprisoned in Adiala Jail and he needed to obtain fresh instructions.
He said they had challenged the short order earlier, and after the issuance of detailed reasons, they now needed to file additional submissions, for which meetingwith the client was essential.
He requested the court to issue directions allowing him to meet the PTI founder so he could determine whether to withdraw the petition or challenge the decision with additional grounds. The counsel also invoked Article 187, which concerns complete justice, and pleaded for its application so he could obtain instructions from Imran.
The chief justice replied that only the court that had sentenced the former prime minister had the authority to issue such directions, and the FCC could not do so. Idrees Ashraf requested additional time, which the court granted. The FCC later adjourned the hearing indefinitely.
In February, 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, Justice Mohsin Akhtar Kayani, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, Justice Saman Rafat Imtiaz, and Justice Tariq Mehmood Jahangiri filed representations against this seniority list. The then IHC chief justice, Aamer Farooq, rejected these representations.
The IHC judges and some other petitioners, including Imran Khan, challenged the ministry’s notification as well as the new seniority list in the Supreme Court, whose five-member constitutional bench (CB) heard the matter.
On June 19, a CB led by Justice Muhammad Ali Mazhar declared that the transfer of the three judges was not unconstitutional with a majority ruling of 3 to 2.
The majority opinion was supported by Justice Mazhar, Justice Shahid Bilal, and Justice Salahuddin Panhwar. However, Justice Naeem Akhtar Afghan and Shakeel Ahmad dissented from the majority decision. The IHC judges filed an intra-court appeal against the order.
