F.P. Report
ISLAMABAD: Justice Muhammad Ali Mazhar, heading a five-member constitutional bench of the Supreme Court, remarked that conflicting arguments were being made by petitioners’ counsel in the case regarding judges’ transfers and seniority.
He noted the contradiction between the claim that a transferred judge must take a fresh oath and the assertion that such transfers cannot be permanent.
Hearing challenges related to Article 200 of the Constitution, the bench adjourned the proceedings till Monday.
Advocate Faisal Siddiqi, counsel for the petitioners, drew comparisons with India, arguing that unlike Pakistan, Indian judges are transferred without consent, maintaining seniority. He argued that judicial appointments must go through the Judicial Commission, whereas a transfer by the President is not constitutionally mandated.
Justice Mazhar reminded the counsel that the President has constitutional authority for transfers and asked why anyone would be compelled to enforce that power. He directed the lawyer to limit arguments to the scope of judicial transfers.
Justice Naeem Akhtar Afghan and Justice Salahuddin Panhwar pointed out inconsistencies in Siddiqi’s arguments, recalling that he earlier accepted presidential authority while now suggesting limitations based on seniority.
Siddiqi maintained that transfers should be time-bound and cited examples from the Federal Shariat Court, where judges are appointed from high courts for fixed three-year terms.
However, Justice Mazhar questioned the relevance of Shariat Court appointments to high court-to-high court transfers, pointing out that appointments to the Shariat Court are constitutionally superior, while inter-court transfers are lateral.
The bench probed the implications of reappointments, fresh oaths, and seniority disruptions. Justice Mazhar asked whether judges could keep taking new oaths each time they were transferred, potentially nullifying their earlier service. “How can a judge take two or three oaths at the same time?” he remarked.
Justice Shakeel Ahmed questioned how seniority would be determined upon return. Siddiqi responded that there could be two separate seniority lists.
Justice Mazhar warned that such a practice could ignite fresh disputes, particularly if a transferred judge returned and was placed at the bottom of the seniority list. He observed that unlike India, Pakistan has no unified seniority list across high courts.
Justice Afghan raised constitutional questions under Article 200, noting that the Islamabad High Court (IHC) Act doesn’t mention transfers and only defines appointment procedures. He pointed out that if transfers were envisioned, the Act would have included provisions. He further questioned why the name of a Balochistan judge had been dropped from an earlier Judicial Commission meeting, asking the Attorney General to respond in the next hearing.
Justice Mazhar concluded that the primary issue was whether a transferred judge must take a new oath and how that affects service continuity. “There is a difference between an acting judge and a transferred judge,” he observed.
