SC judge regrets transferred judges called ‘deputationists’ by plaintiffs

ISLAMABAD: The Supreme Court adjourned until Wednesday (today) hearing into identical petitions challenging the transfer of judges to the Islamabad High Court (IHC) as well as the judges seniority issue.

A five-member constitutional bench of the apex court — headed by Justice Muhammad Ali Mazhar — heard the petitions of five IHC judges against the transfer of judges to the high court from other provinces and formation of a new seniority list based on the transfers.

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

On Tuesday, Hamid Khan, counsel for the Lahore High Court Bar Association and Lahore Bar Association, as well as Faisal Siddiqi, counsel for the Karachi Bar Association and four former presidents of Islamabad High Court Bar Association, completed their arguments.

The court then adjourned the hearing until today (Wednesday) when Idrees Ashraf, counsel for former PTI chairman Imran Khan will commence his arguments, while Attorney General Mansoor Usman Awan will argue.

On Tuesday, Justice Muhammad Ali Mazhar remarked that in their representation, the IHC judges had referred to the incoming judges as “deputationists,” which, he said, was regrettable.

Hamid Khan, representing the Lahore High Court Bar Association and Lahore Bar Association, argued that only the cabinet had the authority to advise on the transfer of judges from one High Court to another. He cited the Mustafa Impex case, asserting that according to that verdict, the “Federal Government” refers to the Federal Cabinet.

Justice Mazhar pointed to Article 48 of the Constitution, noting that it includes the mention of prime minister. He questioned whether Mustafa Impex ruling has nullified the role of the prime minister under Article 48.

Justice Salahuddin Panhwar noted that the IHC chief justice’s decision did not highlight any illegality. Justice Mazhar remarked that since the five judges and petitioners had challenged the decision of the IHC chief justice, they also should have identified the illegal aspects of the decision.

Justice Shakeel said Faisal Siddiqui Advocate will address that point in his rebuttal. After Hamid Khan had completed his arguments, Faisal Siddiqui began his rebuttal, stating that sub-clauses 1 and 2 of Article 200 of the Constitution pertain to the transfer of judges. He further submitted that the matter involved three former chief justices, a prime minister, and the president, so it could not be ignored. He likened the situation to a blind man searching for a hidden hole in a dark room.

Referring to the attorney general’s stance, Siddiqui said if a transfer was temporary, sub-article 2 applies, while for a permanent transfer, sub-article 1 stands alone. He submitted that an appointment is not considered valid until the summary is signed.

Siddiqui further submitted that the attorney general says, ‘we won’t write it; you should just understand.’ “But only God knows what’s in someone’s heart,” Siddiqui said, adding that Article 194 is key to this case; when a judge is transferred, he/she must take a new oath.

Justice Muhammad Ali Mazhar questioned as to what happens to the judge’s previous service upon taking a new oath and further inquired whether the judge then becomes junior.

Siddiqui replied that since the transfer is temporary, taking a new oath does not affect the judge’s previous service. “When judges return to their original High Court, they resume their original seniority,” Siddiqui added. He emphasized that a judge’s transfer is not a new or permanent appointment; under the Presidential Order, a transfer can only be temporary.

Justice Mazhar pointed out that the IHC judges didn’t object to the transfer procedure itself but to the seniority issue. He added that the seniority was determined by the IHC chief justice, and that decision affected the petitioner judges.

Justice Mazhar also asked Siddiqui if the judges’ representation had been accepted, will his clients still have filed the petition. “Absolutely”, Siddiqui replied, saying they would still have challenged the transfers.

Justice Mazhar reiterated that the affected parties in this case are the judges themselves and clarified that the main case from the outset has centered on those judges. Later, the court adjourned the hearing for today (Wednesday).