Power to transfer judge rests with president: Justice Mazhar

ISLAMABAD: The Supreme Court Friday adjourned until Monday hearing into identical petitions challenging the transfer of judges from various high courts to the Islamabad High Court (IHC).

A five-member constitutional bench headed by Justice Muhammad Ali Mazhar heard the identical petitions filed by six IHC judges against the transfer of judges to the high court.

The other members of the bench included Justice Naeem Akhtar Afghan, Justice Shahid Bilal Hassan, Justice Salahuddin Panhwar, and Justice Shakeel Ahmed.

The issue was also challenged by the Lahore High Court Bar Association (LHCBA) as well as Lahore Bar Association.

Five sitting judges of Islamabad High Court (IHC) including Justice Mohsin Mohsin Akhtar Kiyani, Justice Tariq Mehmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, and Justice Saman Riffat Imtiaz had filed identical petition with the Supreme Court under Article 184(3) of the Constitution.

They had challenged the transfer of Justice Sarfaraz Dogar from the Lahore High Court, Justice Khadim Hussain Soomro from the Sindh High Court, and Justice Muhammad Asif from the Balochistan High Court to the IHC.

Continuing his arguments, Faisal Siddiqui, counsel for the Karachi Bar Association, submitted that in India, judges consent was not sought for transfer but they were transferred according to the seniority.

Siddiqui contended that judges appointment was mandatory for the Judicial Commission adding that it was not mandatory for the president of Pakistan to transfer a judge.

Justice Muhammad Ali Mazhar, however, observed that the power to transfer rested constitutionally with the president.

How can someone enforce a transfer decision on the president? Justice Mazhar asked.

Faisal Siddiqui said his point was that a judge s transfer should be time-bound. He submitted that judges from high courts were appointed to the Federal Shariat Court and these appointments were for three years.

Justice Mazhar, however, questioned as to what was the connection between these appointments and the issue of transfer saying the appointment to the Shariat Court from the High Court was considered promotion. The judge noted that transfer from one high court to another held an equal status.

Justice Mazhar asked the counsel that as he had talked about time-bound transfers; therefore, he should give reasons why they should be time-bound.

Siddiqui replied that he will explain as to why time-bound transfers were necessary.

Justice Mazhar then asked the counsel if there was a concept of time-bound transfers in India as well adding, Our Article 200 and their constitution also make no mention of time-bound transfers .

Siddiqui replied that judges could not be permanently transferred.

But you say these transfers are not time-bound, Justice Mazhar asked the counsel, adding, Suppose these judges are re-transferred, then what would be their seniority.

He noted that when judges return to their high court, seniority becomes an issue. Justice Mazhar said in India, if a judge refuses to be transferred, he has to go home, while in Pakistan a judge is transferred on his/her will.

In this respect, Justice Mazhar pointed out that they had an example of a chief justice of Sindh High Court who had refused his elevation to Supreme Court but despite that he served as chief justice of Sindh High Court.

The judge questioned how the Supreme Court could decide on the basis of a previous legislative history adding that the basic question was that the transfer judge will take oath or not.

Later, the court adjourned the hearing until May 26.