The Supreme Court of Pakistan has issued its reserved judgment in the high-profile case concerning the seniority and transfer of Islamabad High Court (IHC) judges, ruling that judicial transfers are not unconstitutional.
The five-member constitutional bench delivered its decision with a 3-2 majority. Justices Muhammad Ali Mazhar, Shahid Bilal, and Salahuddin Panhwar supported the majority opinion, while Justices Naeem Akhtar Afghan and Shakeel Afridi dissented.
According to the judgment, a judge’s transfer, whether permanent or temporary, does not constitute a new appointment and cannot be deemed unconstitutional. The court mandated that the President of Pakistan will determine the nature of the transfer and the seniority status of the involved judges, and this clarification must be issued through a fresh notification. Until such a notification is released, Justice Sarfraz Dogar will continue to serve as Acting Chief Justice.
This verdict follows petitions filed by five IHC judges who challenged the legality of their transfers. The bench, led by Justice Muhammad Ali Mazhar, reserved its decision after hearing comprehensive arguments from all parties involved.
However, in a dissenting note, Justices Afghan and Afridi declared the transfers null and void, asserting that the President violated the Constitution by transferring judges without proper constitutional backing or justification. They also contended that the transfers appeared to be conducted in haste and lacked transparency, suggesting malintent behind the move.
The dissenting judges specifically highlighted that the President acted without lawful authority in transferring judges to the IHC, stressing that the Constitution does not permit a transferred judge to be appointed as a permanent High Court judge. They further noted that the transfers were made hastily without providing valid reasons and that no specific term of appointment was defined for the transferred judges. They concluded that the process reflected bad faith and lacked transparency.
The Supreme Court directed the President of Pakistan to clarify the nature and seniority of these judicial transfers through a new notification, outlining the terms and conditions. In the interim, Justice Sarfraz Dogar will continue as Acting Chief Justice of the IHC.
This ruling has intensified legal debate regarding the executive’s role in judicial appointments and transfers, especially given the strong dissenting opinions that deemed the transfers unconstitutional and invalid.
