By Staff Reporter
ISLAMABAD: The Supreme Court on Pakistan (SCP) on Thursday upheld the transfer of three judges to the Islamabad High Court, dismissing challenges to the moves in a 3-2 ruling that affirmed their constitutionality.
The decision preserved Justice Sarfraz Dogar’s role as acting chief justice but exposed sharp divisions within the judiciary over executive influence.
The transfers, enacted in February, 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. Controversy erupted when Dogar was designated senior puisne judge, stepping into the acting chief justice role after Justice Aamer Farooq’s elevation to the Supreme Court.
Five Islamabad High Court judges, the Karachi Bar Association, and other petitioners contested the transfers, alleging violations of constitutional norms.
The Supreme Court, led by Justice Muhammad Ali Mazhar, rejected these claims, asserting that transfers under Article 200 are a judicial prerogative, not executive overreach. “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,” the court ruled, citing a four-step process involving the judge’s consent and consultation with chief justices.
The majority further clarified that the president’s authority under Article 200 is neither “unregulated nor unfettered.” The court stressed that the decision rests “within the sphere and realm of judiciary and not within the domain of executives,” rejecting claims that the transfers exceeded constitutional limits. “For all intents and purposes, the transfer of judges by the president of Pakistan … is within the framework of the Constitution and cannot be declared ultra vires,” the order stated.
The court, however, noted procedural ambiguities and directed the president to clarify the judges’ seniority and the transfers’ permanence. Dogar will continue as acting chief justice pending a presidential notification.
In dissent, Justices Naeem Akhtar Afghan and Shakeel Ahmed deemed the transfers “null and void,” arguing they lacked transparency and threatened judicial independence.
In an order authored by Justice Afghan, the minority declared the transfer notification “null, void and of no legal effect,” arguing that it represented a “wrong exercise of discretion” under Article 200. The dissent contended that the action “offended Article 175A of the Constitution,” which governs judicial appointments through the Judicial Commission of Pakistan, rendering it “redundant.”
“The permanent transfer of three Judges to IHC has been made by the president in wrong exercise of discretion under Clause (1) of Article 200 of the Constitution,” Justice Afghan wrote. He criticised the process as opaque, alleging it occurred “under concealment of relevant and material facts from the transferee Judges” and lacked “meaningful, purposive and consensus-oriented consultation” with the chief justices of the Supreme Court and the affected high courts.
The dissenting justices also pointed to procedural flaws, asserting that the transfers were rushed through “in an unnecessary haste.” They argued that proportionate representation of provinces in the Islamabad High Court could have been achieved through fresh appointments under Article 175A, rather than transfers.
The dissent warned that the notification violated core constitutional principles, including Article 2A (Objectives Resolution), Article 4 (right to due process), and Article 25 (equality of citizens), ultimately “undermining the independence of judiciary, due process and principle of equality.”
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