SC rejects pleas against transfer of IHC judges

ISLAMABAD  –  The Constitution Bench of Supreme Court by majority of 3 to 2 Thursday disposed of the petitions of the Islamabad High Court (IHC) five judges regarding transfer of judges from various High Courts to the IHC saying that the transfer of the judges “is within the framework of the Constitution and cannot be declared ultra vires.”

It also ruled, “We partially remand the matter to the President of Pakistan, without upsetting the Notification of transfer, to determine the seniority after examining/ vetting the service record of the transferee judges as soon as possible, including the question of whether the transfer is on a permanent or temporary basis.”

A five-member Constitutional Bench, headed by Justice Muhammad Ali Mazhar comprising Justice Naeem Akhtar Afghan, Justice Shahid Bilal Hassan, Justice Salahuddin Panhwar, and Justice Shakeel Ahmed announced the judgment on transfer of the three judges from various High Courts to the Islamabad High Court (IHC).

The Constitutional Bench said in its short order that the powers of the President of Pakistan under Sub-article (1) of Article 200 of the Constitution of the Islamic Republic of Pakistan, 1973 for the transfer of a Judge of the High Court from one High Court to another High Court and the provisions contained under Article 175A of the Constitution for appointment of Judges to the Supreme Court, High Courts, and the Federal Shariat Court by the Judicial Commission of Pakistan (JCP) are two distinct provisions dealing with different situations and niceties. Neither do they overlap nor override each other.

It added, “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, it said that 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 Islamabad High Court, 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 High Court 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.

The court order said that in all fairness, if it is presumed that all posts should be filled by the JCP alone through fresh appointments, then such interpretation or state of mind, in our view, 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; which 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.

It continued that as far as Section 3 of the Islamabad High Court Act, 2010, is concerned, it only divulges that the Islamabad High Court shall consist of a Chief Justice and twelve other judges to be appointed from the provinces and other territories of Pakistan in accordance with the Constitution. In our considered view, this provision is only germane to the appointment of judges and does not, in any way, mean that a judge can only join the Islamabad High Court through a fresh appointment and not by way of a transfer or, in other words, that Article 200 does not apply to the Islamabad High Court, which interpretation would be against the exactitudes of the Constitution. Neither can Section 3 of the aforesaid Act supersede/override a constitutional mandate, nor can it control, nullify, or rescind the powers of transfer that are vested in the President of Pakistan under Article 200 of the Constitution.

It concluded that 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, Justice Sardar Muhammad Sarfraz Dogar, already holding the office of Acting Chief Justice of the Islamabad High Court, will continue to perform as the Acting Chief Justice of the Islamabad High Court.