• Federal govt submits seven-page response to Supreme Court.
• Says transfer in no way undermines judicial independence. 
• Constitution doesn’t mention provision for temporary transfers.” 

ISLAMABAD: The federal government on Wednesday submitted its response in the Supreme Court regarding the judges’ seniority case, urging the apex court to dismiss all petitions challenging the appointments of judges, including those of the Islamabad High Court.

“The contentions of the petitioners are denied on all counts and it is submitted that the process initiated under Article 200 for the transfer of judges from Punjab, Sindh and Balochistan High Court demonstrate and deliver transparency and in no way undermine the independence of the judiciary,” the Centre said in its seven-page response — a copy of which is available with Geo News.

A five-member bench, headed by Justice Muhammad Ali Mazhar and comprising Justices Naeem Akhtar Afghan, Shahid Bilal Hassan, Salahuddin Panhwar, and Shakeel Ahmed took up petitions filed by five IHC judges, the Karachi Bar Association (KBA) and the IHC Bar Association, among others.

In February, five judges of the IHC moved the SC against the appointment of Justice Sarfraz Dogar as the acting chief justice of IHC as well as the transfer of judges from three high courts to the capital’s high court.

Five IHC judges — Justice Mohsin Akhtar Kiyani, Justice Tariq Mehmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan and Justice Saman Riffat Imtiaz — filed a petition in the top court under Article 184(3) of the Constitution.

The IHC judges urged the apex court to declare that the president does not have unfettered and unbridled discretion to transfer judges from one high court to another, under Article 200(1) of the Constitution, without a manifest public interest, and in a manner that hampers the principles of independence of judiciary and separation of powers.

The five IHC jurists also prayed the apex court to declare that in line with the settled law pronounced by the highest court in the case of Aslam Awan and Farrukh Irfan, the inter-se seniority of Respondents No 9-11 shall be determined from the date they take oath as justices of the IHC and will consequently be lower in the seniority list to the petitioners.

In its response submitted today, the federal government maintained that judges are not required to take a fresh oath following a transfer, as a transfer under Article 200 does not constitute a new appointment.

“Article 200(1) deals with the power of the President to transfer judges from one High Court to another, thereby attributing a clear permanence to the transfer,” it stated.

The argument that the transfers are temporary was also rejected, with the government stating that the Constitution does not mention any such provision for temporary transfers of judges.

“No use of the term “for such period” or “during the period” in clause (1) of Article 200 clearly reflects that the transfer thereunder, unlike clause (3), not in the nature of a temporary arrangement. Permanency of transfer under Article 200(1) is also evident from the fact that to send the transferee judge back to his parent High Court, the President will have to follow the entire procedure provided under Article 200(1) again,” it added.

The federal government highlighted that prior to initiating the process under Article 200(1), the Judicial Commission of Pakistan (JCP) on January 1, 2025 appointed two additional judges to the IHC while leaving three positions vacant.

According to the federal government, the Ministry of Law had sent a summary for the judges’ transfer to the Islamabad High Court on January 28. It emphasised that the president’s role in such transfers is limited, and the real authority lies with the Chief Justice of Pakistan (CJP).

Therefore, the government requested the dismissal of all petitions filed against the appointments of judges, including those in the Islamabad High Court.

Last hearing

In the previous hearing, IHC judges’ counsel Muneer A Malik argued that the matter must be interpreted in light of Article 175, as it concerns judicial transfers, federalism, and the role of administrative committees.

At this, SC’s Justice Mazhar stated that judges’ transfers fall under Article 200 and that the court can’t treat judges as civil servants.

The judge outlined the four-tier process of a judge’s transfer: consent from the judge being transferred, the chief justices of both the sending and receiving high courts, and final approval by the Chief Justice of Pakistan, following which the president issues the official notification.

He asked the counsel whether the objection was on the transfer or the seniority list, to which Malik responded: “Both.”

Justice Mazhar further commented on the practice of adding new language to the Constitution, citing criticism of the Article 62(1)(f) lifetime disqualification verdict, which was later modified upon review.

Justice Afghan asked: “Why were new judges not appointed from the same provinces instead of transferring existing ones when vacancies were available?”

He also questioned whether an oath specifically mentions which high court the judge is swearing allegiance to. Malik replied that the oath’s draft does specify the Islamabad Capital Territory in the case of IHC appointments.

Before adjourning proceedings till April 17, the court issued notices to Acting Chief Justice of Islamabad High Court Sarfraz Dogar, Justice Khadim Hussain, Justice Muhammad Asif, the Judicial Commission, and the Attorney General for Pakistan in response to the petitions filed by the five judges.