Top court upholds Justice Sarfraz Dogar’s role as acting chief justice of IHC
ISLAMABAD: The Supreme Court on Thursday rejected appeals opposing the transfer of judges from three different high courts to the Islamabad High Court. It ruled the transfers align with the Constitution and allowed Justice Sarfraz Dogar to remain in his position as the acting chief justice of the IHC.
Justice Muhammad Ali Mazhar, who led the five-member constitutional bench, delivered the verdict. The bench was reviewing petitions submitted by five IHC judges, the Karachi Bar Association, the IHC Bar Association, and others. They challenged the transfer of Justice 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. These three judges had been moved to the IHC.
Justice Naeem Akhtar Afghan, Justice Shahid Bilal Hassan, Justice Salahuddin Panhwar, and Justice Shakeel Ahmed were also part of the bench.
In February, five judges from the IHC approached the supreme court under Article 184(3) of the Constitution. They challenged Justice Sarfraz Dogar’s appointment as the acting chief justice of IHC and questioned the transfer of high court judges. Justice Mohsin Akhtar Kiyani, Justice Tariq Mehmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, and Justice Saman Riffat Imtiaz filed the petition.
The IHC judges asked the top court to state that the president cannot have limitless authority to move judges from one high court to another under Article 200(1) of the Constitution. They argued this should require clear public benefit and must not undermine judicial independence or disrupt the separation of powers.
In their petition, they also requested the court to affirm that, according to established rulings made by the top court in the Aslam Awan and Farrukh Irfan cases, the seniority of Respondents No 9-11 should start from the date they are sworn in as IHC justices. This means their position in the seniority list would come after the petitioners.
The highest court started addressing the case on April 17 and has held 19 hearings so far. In a 3-2 majority decision today, the top court dismissed several petitions. Justice Mazhar, Justice Hassan, and Justice Panhwar decided to reject the pleas.
On the other hand, Justice Afghan and Justice Ahmad supported the petitions and overturned the judges’ transfer notification.
In a 5-page ruling, the supreme court underlined that the president of Pakistan’s authority to transfer a high court judge and the process laid out under Article 175A of the Constitution to appoint judges to higher courts are separate and deal with unrelated scenarios. These provisions do not clash or replace one another.
The brief order stated, “The transfer of a judge by the president of Pakistan under Article 200 of the Constitution, whether permanent or temporary, does not qualify as a new appointment.”
The court observed, “The framers of the Constitution themselves granted the president the power to transfer judges.”
The court referring to Section 3 of the Islamabad High Court Act 2010, stated that this section says the IHC will have a chief justice and twelve judges chosen from provinces and other regions. It clarified that this part relates to picking judges and does not imply a judge can join the IHC through a new appointment or that Article 200 cannot apply to the IHC. Such an interpretation, the court noted, would contradict the Constitution.
The judgment states that Section 3 of the mentioned Act cannot overrule or replace a constitutional requirement. It also cannot undo, limit, or cancel the powers of transfer granted to the President of Pakistan under Article 200 of the Constitution.
The ruling explained that while the President’s authority under Article 200 is controlled and involves consultation with the Chief Justice of Pakistan, it does not weaken the judiciary’s independence. This is because the power to approve or deny rests with the judiciary.
We believe that under normal conditions, resolving disputes or disagreements about seniority among judges in a high court falls under the responsibility of the chief justice of that high court on the administrative side. However, this situation involves the transfer of judges from other high courts to the Islamabad High Court.
The judgment explains that this is not about seniority disputes within the same high court’s existing judges. Instead, the issue arises between the judges who were transferred and those already serving in the court before the transfer. The court ordered that Justice Dogar could keep serving as the acting chief justice of IHC while the president of Pakistan reviewed the service records of the transferred judges. This review would determine their seniority and clarify if the transfer was permanent or temporary
