The Supreme Court (SC) on Friday sought an explanation from the Attorney General regarding the omission of Sessions Judge Raja Jawad Abbas’s name from Balochistan in a Judicial Commission meeting held just ten days before the appointment of Justice Sardar Muhammad Sarfraz Dogar as acting Chief Justice of Islamabad High Court.
The court questioned why, if a permanent judge was to be appointed from Balochistan, the nomination of Judge Jawad Abbas was not pursued further. The Attorney General is expected to respond at the next hearing.
The explanation was sought by the Supreme Court’s fivemember constitutional bench headed by Justice Muhammad Ali Mazhar before adjourning the hearing of the Islamabad High Court judges’ transfer and seniority case until Monday.
During the proceedings of the case, Advocate Faisal Siddiqi argued that, unlike Pakistan, judicial transfers in India do not require the consent of the judge.
He maintained that in India, judges are transferred based on seniority and that appointments to the Judicial Commission are essential, but not every transfer requires the involvement of the President like of Pakistan.
Justice Muhammad Ali Mazhar remarked that the President holds constitutional authority for judicial transfers and questioned how the President could be compelled in such matters. He instructed the counsel to keep his arguments focused on the transfer issue alone.
Justice Naeem Akhtar Afghan reminded the counsel that he had earlier stated he was not challenging the President’s authority over transfers. Justice Salahuddin Panhwar also pointed out that the lawyer had initially claimed to focus on the issue of seniority.
Advocate Faisal Siddiqi asserted that judicial transfers are timebound, especially in the case of appointments from high courts to the Federal Shariat Court, where the tenure is fixed for three years.
However, Justice Mazhar questioned the relevance of this point, noting that a transfer from one high court to another maintains equal status, while an appointment to the Shariat Court is considered a promotion.
Advocate Siddiqi raised concerns over the transfer of Justice Asif, an additional judge, questioning how he could be appointed to the Islamabad High Court without a performance review from his tenure at the Balochistan High Court. He argued that while a Chief Justice cannot be transferred, an acting Chief Justice can be.
Justice Mazhar asked for constitutional definitions and reasoning for why a transfer should be timebound. When advocate Siddiqi offered to explain the rationale, Justice Mazhar inquired whether the Indian constitution contains any provision about timebound transfers, noting that Article 200 in both constitutions does not mention this.
Justice Panhwar and Justice Mazhar emphasized that there is no constitutional or legal provision mandating temporary transfers. They highlighted that in India, refusal to transfer can result in a judge’s removal, whereas in Pakistan, consent is typically sought, referencing a case where the Chief Justice of the Sindh High Court declined a Supreme Court appointment and retained his current position.
The bench questioned whether a judge who is transferred would need to take a new oath and what impact this would have on their previous service and seniority. Justice Shakeel Ahmed added that the core issue is how seniority would be calculated. Advocate Siddiqi responded that two separate seniority lists would be needed.
Justice Mazhar cited a hypothetical scenario where a transferred judge returns to their original court and ends up at the bottom of the seniority list, thereby creating further complications. He noted that unlike India, Pakistan maintains separate seniority lists for each high court, and a judge cannot simultaneously hold multiple oaths of office.
Justice Afghan remarked that if a permanent judge can be appointed under Article 200, the Judicial Commission’s role could be undermined. He noted that the three transferred judges each took oaths in their respective courts, and without an oath, a judge cannot perform judicial functions.
Justice Mazhar reiterated that a new oath would nullify the previous one and distinguished between acting and transferred judges. Justice Afghan also pointed out that the Islamabad High Court was established after Article 200 and that its Act specifies the composition of judges but not transfers.
The Act mentions that judges shall be selected from all four provinces, but not necessarily from other high courts. Later, the court adjourned the hearing of the judicial transfers and seniority case until May 26, directing advocate Faisal Siddiqi to complete his arguments on next hearing.