By Staff Reporter
ISLAMABAD: The Federal Constitutional Court on Monday dismissed a series of intra-court appeals challenging the transfer of three judges to the Islamabad High Court, including a prominent plea filed by five judges from that court, citing the absence of lawyers and petitioners at the hearing.
The ruling, delivered by a six-member bench led by Chief Justice Aminuddin Khan, underscores ongoing friction within the judiciary following recent constitutional amendments that reshaped the nation’s highest courts. The appeals stemmed from a June decision by a now-dissolved Supreme Court constitutional bench that upheld the transfers, a move critics argued undermined judicial independence by allowing executive influence over appointments.
The court’s action came amid broader debates over the 27th Constitutional Amendment, which established the Federal Constitutional Court and shifted certain cases from the Supreme Court. The dismissed appeals included those from the five Islamabad High Court judges,Justices Mohsin Akhtar Kayani, Babar Sattar, Sardar Ejaz Ishaq Khan, Saman Rafat Imtiaz and Tariq Mehmood Jahangiri, who had contested the earlier ruling through senior counsel Muneer A. Malik.
As proceedings opened in the stately courtroom, a court associate methodically called out the names of lawyers for each appeal. When none appeared for six of the nine cases, the bench dismissed them one by one, issuing separate orders for each. The judges themselves were not present. The bench, which also included Justices Syed Hasan Azhar Rizvi, Ali Baqar Najafi, Muhammad Karim Khan Agha, Rozi Khan Barrech and Arshad Hussain Shah, handled pleas from a range of parties.
Among the dismissed appeals were those filed by Tahir Faraz Abbasi through Advocate Abid Shahid Zuberi, Raja Muqsit Nawaz Khan, and the Karachi Bar Association, Muhammad Shoaib Shaheen and Riasat Ali Azad through counsel Faisal Siddiqi.
The court adjourned hearings on three remaining appeals indefinitely. These included a plea from Imran Khan, the founder of the Pakistan Tehreek-e-Insaf party and former prime minister, who is currently incarcerated. His counsel, Idrees Ashraf, requested court directives to allow a meeting with Khan to gather instructions following the 27th Amendment’s enactment.
Ashraf argued that he needed to file additional grounds, as the original appeal targeted only the Supreme Court’s short order. “I had to file additional grounds since he had moved the appeal against the SC’s short order,” Ashraf told the bench. “Therefore, he argued, a meeting with the client was necessary.”
Chief Justice Aminuddin rejected the request, stating that it fell outside the court’s purview. “The counsel should approach the forum that sentenced his client,” the chief justice observed. “The matter did not fall in the FCC’s domain.”
Ashraf pressed further, contending that such a directive would “fulfil the requirement of complete justice” under Article 187 of the Constitution. The bench remained unmoved, opting to postpone the matter.
Another adjournment came for pleas from the Lahore High Court Bar Association and the Lahore Bar Association, represented by senior counsel Hamid Khan. Advocate Ajmal Toor appeared on Khan’s behalf, explaining that his colleague was unavailable and requesting more time. The court granted the delay without setting a new date.
At the heart of the dispute is a June 19 judgment by the defunct constitutional bench of the Supreme Court, which ruled 3 to 2 that the transfers of three judges to the Islamabad High Court were constitutional. The transfers involved Justice Sardar Mohammad Sarfraz Dogar from the Lahore High Court, Justice Khadim Hussain Soomro from the Sindh High Court, and Justice Muhammad Asif from the Balochistan High Court.
The controversy intensified when the transfers altered the seniority list at the Islamabad High Court, positioning Justice Dogar as the senior puisne judge. This cleared the path for his role as acting chief justice after Justice Aamer Farooq’s elevation to the Supreme Court; Justice Dogar now serves as the court’s chief justice.
The five Islamabad High Court judges, in their appeal, argued that the June 19 order had improperly inserted the word “permanent” into Article 200(1) and (2) of the Constitution, where no such term exists. They contended that the bench had misinterpreted Article 200 by viewing subsection (1) in isolation, failing to recognize that transfers under it should be temporary and time-bound.
The appeal further asserted that the ruling neglected to harmonize Articles 200 and 175A, thereby eroding the powers of the Judicial Commission of Pakistan. “Independence of the judiciary did not allow bestowing onto the executive a much more expansive power than what the text of Article 200 and the foundational principles of constitutional law can bear,” the judges argued in their filing.
Khan’s petition echoed these concerns, claiming the judgment “had eroded the safeguards aimed at preserving judicial independence since it circumvented the constitutionally enshrined appointment process.” Adding another layer, the five judges filed a miscellaneous petition on Saturday challenging the assignment of their appeal to the Federal Constitutional Court. They urged the court to remand the case to the Supreme Court, arguing that it constitutionally belonged there and that the 27th Amendment contradicted the Constitution’s framework.
The petition emphasized the separation of powers, stating that “the Constitution clearly outlined the legislature, executive, and judiciary as the three essential pillars of the state and delineated limits and powers for each.” With the main appeal dismissed for non-prosecution, the court did not address the miscellaneous petition.
Copyright © 2021 Independent Pakistan | All rights reserved
