Supreme Court of Pakistan has refused to immediately restrain judges who have been transferred to the Islamabad High Court (IHC) from performing their duties. However, the court has issued notices to all parties involved in the seniority dispute case filed by five IHC judges.
- A five-member constitutional bench of the Supreme Court heard the case concerning the seniority of judges transferred to the IHC. The petitioners had requested the court to issue a stay order ahead of the Judicial Commission meeting scheduled for April 18, fearing the case could be impacted. The court declined the stay request but scheduled the next hearing for April 17.
- The Supreme Court issued notices to Acting Chief Justice of the Islamabad High Court Justice Sardar Sarfraz Dogar, Justice Khadim Hussain, and Justice Muhammad Asif, based on the petition filed by five IHC judges.
- Justice Muhammad Ali Mazhar remarked that there are five separate petitions before the court, all revolving around similar issues. He noted that the core issues are whether the transferred judges retain their previous seniority or start afresh in the new high court, and whether civil service seniority rules apply to the judiciary—which, he clarified, they do not.
- During the proceedings, senior lawyer Munir A. Malik, representing the petitioners, said the objection is both to the transfers and the changes in seniority. Justice Mazhar asked Malik to read Article 200 of the Constitution, which governs judicial transfers. Malik argued that such transfers should be temporary and based on the judge’s consent. However, Justice Mazhar pointed out that the Constitution does not distinguish between temporary and permanent transfers—it simply states that the President can transfer a judge with the consent of the judge and the Chief Justices of the concerned high courts, as well as the Chief Justice of Pakistan.
- Justice Mazhar further explained that a judge’s seniority is counted from the date of their initial oath, even if they are re-administered the oath after transfer. He noted that if seniority is considered afresh from the new oath, it would negate the judge’s previous service.
- The court also dismissed the request to summon the record of the judges’ transfers. Justice Mazhar questioned what additional records were being sought, pointing out that the transfer notification was already on record. He asked whether the petition would be withdrawn if the procedure in the record turned out to be lawful.
- Justice Naeem Akhtar Afghan raised additional questions, asking why new judges were not appointed from the respective provinces instead of transferring existing ones. He also questioned the legal scope for such transfers under the Act that established the Islamabad High Court. Advocate Malik responded that the Act only provides for the appointment of new judges to the IHC and does not mention transfers.
- Justice Afghan further inquired whether the oath taken by a judge specifies the name of the high court. Malik confirmed that the oath draft includes the territorial jurisdiction, stating “Islamabad Capital Territory” in the case of the IHC.
- The Supreme Court also issued notices to the Judicial Commission of Pakistan, provincial Advocate Generals, and the Advocate General for Islamabad. The hearing has been adjourned till April 17.
