Judges transfer case: Constitution silent about transferred judges’ new oath-taking, says SC judge

ISLAMABAD: Supreme Court Judge Muhammad Ali Mazhar Thursday remarked that the Constitution was silent about the new oath-taking of transferred judges.

He gave this observation while heading a five-member constitutional bench hearing identical petitions, challenging the transfer of judges from other high courts to the Islamabad High Court (IHC) as well as seniority issue of the judges.

Continuing his arguments, Munir A Malik, counsel for the five judges, submitted that the Lahore and Islamabad High Courts judges had different offices (positions), and the Judicial Commission for appointments was different in Islamabad High Court and other High Courts. Malik contended that the oath-taking and oath-giver were different for each High Court judges adding that when a judge transfers from one High Court to another, their office changes, and taking a new oath is necessary under the Constitution.

Justice Muhammad Ali Mazhar, however, remarked that the Constitution is silent about the new oath-taking of transferred judges adding that reading Articles 200 and 175A together does not imply any transfer; it is a new appointment. Justice Mazhar pointed out that a judge does not take a permanent oath initially. First, a judge takes oath as an additional judge and becomes permanent through the Judicial Commission; if appointed chief justice, he takes another oath.

“Transfer cannot be considered a new appointment,” Justice Mazhar remarked. Munir A Malik, however, contended that the transfer of judges should be viewed in the context of judicial independence.

Justice Shahid Bilal Hassan remarked that in the past, three Lahore High Court judges have become chief justices of Islamabad High Court. Justice Naeem Akhtar Afghan said Justice Sardar Aslam was appointed as Chief Justice of the Islamabad High Court from the Lahore High Court.

Munir A Malik, however, contended that Justice Sardar Aslam’s appointment was under Article 199, and it was not a transfer but an appointment as chief justice. The counsel submitted that the president used the power of appointment, not transfer, for the chief justice of Islamabad High Court.

Justice Salahuddin Panhwar, however, pointed out that at that time, 18th Amendment and the Judicial Commission did not exist adding that the president had full authority for appointment.

Meanwhile, concluding his arguments, Munir A Malik drew the attention of the court towards the statement/reply filed by the petitioner judges. However, the court was of the opinion that the same is on the record and will be considered while deciding the case in hand.

Hamid Khan, counsel for Lahore High Court Bar Association (LHCBA) and Lahore Bar Association, commenced his arguments, stating that the transfer case is essentially about malice and bad faith concerning law and facts. He submitted that the judges wrote a letter to the chief justice on May 10, 2023, after which this whole matter started.

Hamid Khan informed the court that the then chief justice did not take any position on the five judges’ letter, even though protecting judges’ rights is a fundamental duty of any chief justice.

Advancing his arguments, Hamid Khan submitted that oath-taking is not merely a formality but a constitutional responsibility. He submitted that the petitioner judges are disappointed, hence the letters reveal what happened to them. Justice Shakeel Ahmed asked what malice Khan wanted to prove from reading the letters to which Hamid Khan replied he wanted to present some facts. Justice Muhammad Ali Mazhar said the constitutional bench decides on legal questions, not facts.

Hamid Khan, however, contended that the judges’ letter case had unfortunately remained pending adding that the 26th Amendment case is not scheduled for hearing, and in every case, the 26th amendment obstructs proceedings. Therefore, their position is that the 26th Amendment case should be heard first, Hamid Khan urged the court.

Later, the court adjourned the hearing until May 19 whereby Hamid Khan will continue his arguments.

Meanwhile, five sitting Judges of the Islamabad High Court (IHC) Thursday claimed that the history and people of this country will remember that when the going got tough, they stood up to be counted in defense of constitutionalism, rule of law and judicial independence.

They submitted their joint statement/reply with the Constitutional Bench in their identical petitions, challenging the transfer of judges to Islamabad High Court and seniority issue of judges.

“We are cognizant that as judges we will be judged by the people of this country, by history once our time is done, and by the Maker in the hereafter”, the five judges submitted two-page reply/statement in the apex court.

Filed through their counsel Munir A Malik, the five IHC judges submitted that as lawyers they received more than their fair share of professional recognition and financial reward that comes along adding that adorning judicial robes meant accepting a pay cut.

“But it was an ‘elevation’ nevertheless, as it offered an opportunity to engage in public service and give back to a society that had given us much to be thankful for,” the five judges informed the bench adding that they accepted their constitutional offices with humility, recognizing that dispensation of justice was a God-like function, to be exercised as a trust, and for which there will be accountability in this world and Hereafter.

The five judges maintained that the oath they swore requires dispensation of justice “without fear or favor, affection or ill-will adding that to discharge duties honestly and faithfully, in accordance with the Constitution and the law, requires, by definition, striving for judicial independence, both in terms of institutional design and as a personal state of mind.

“It is our shared belief that a judge who forsakes his/her independence or that of his/her institution, can neither exercise judicial power as a trust, nor can uphold the sanctity and moral authority of the Judicature,” they submitted

“We have taken administrative measures to stem the slide in judicial independence and the resultant weakening of fundamental rights and rule of law and such efforts having failed required the filing of this petition as a measure of last resort,” the five judges informed the bench.

“This petition may be in our names, but it seeks justice for Islamabad High Court and the citizens for whose benefit it exists,” the five judges concluded.