Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
A petition filed in the Supreme Court on Thursday challenging the transfer of three Islamabad High Court (IHC) judges has brought the controversy to the fore, with the plea arguing that the move violates constitutional guarantees and undermines judicial independence.
The petition, filed by Lahore Bar Association President Irfan Hayat Bajwa through senior counsel Hamid Khan, contends that the transfers were carried out “without any publicly disclosed reasons, criteria, or demonstrable institutional necessity”.
It alleges a “lack of transparency and absence of procedural safeguards”.
It further argues that judicial independence forms part of the Constitution’s “Basic Features” and warns that any erosion of it “undermines the Constitution”.
The legal challenge comes as Justices Babar Sattar and Mohsin Akhtar Kayani prepare to assume judicial duties at the Peshawar High Court (PHC) and Lahore High Court (LHC), respectively, following their transfers from the IHC.
The transfers, approved by the Judicial Commission of Pakistan (JCP) on April 28 and notified by the law ministry on April 29, also included Justice Saman Rafat Imtiaz, who has been moved to the Sindh High Court. The decision has drawn criticism from sections of the legal fraternity.
Court rosters issued on Thursday confirmed that the transferred judges will begin hearing cases in their new postings next week.
The LHC’s revised roster for May 4 to July 4 shows that Justice Kayani will sit as a single bench judge at the principal seat, where 27 single benches and nine division benches have been constituted, as notified by Additional Registrar (Judicial) Shabbir Hussain Shah.
At the PHC, Justice Sattar has been included in the May 4–7 roster and will sit on a division bench at the principal seat on Monday alongside Justice Wiqar Ahmad.
The PHC roster, approved by Chief Justice SM Attique Shah, lists nine single benches and one division bench.
In its arguments, the petition questions the legality of the transfers under Article 200 of the Constitution, stating that the exercise of such powers without defined criteria “renders the process arbitrary, opaque, and liable to be set aside”.
It also raises constitutional concerns linked to the 27th Constitutional Amendment, asserting that changes affecting judicial jurisdiction were unlawful and describing the amendment as “a fraud on the electorate,” while claiming that Parliament lacked the mandate to enact such measures.
The plea further challenges the transfer of the SC’s jurisdiction to a newly created Federal Constitutional Court, questioning whether such a court can adjudicate matters relating to its own creation.
It reiterates that “in the absence of any disclosed reasons, criteria, or demonstrable institutional necessity, the transfers of JudgesÂ… are unlawful,” and warns that large-scale transfers without replacement have caused “institutional disruption” and risk eroding public confidence in the judiciary.
The petitioner has requested the SC to declare the transfers unconstitutional and void, and to issue directions clarifying the constitutional framework governing judicial appointments and transfers.
