Justice Afghan questions transfer of judge, bypassing seniors

ISLAMABAD: Justice Naeem Akhtar Afghan of the Supreme Court on Wednesday questioned the transfer of the 15th-ranked judge, bypassing senior judges.

A five-member constitutional bench of the apex court, headed by Justice Muhammad Ali Mazhar, heard petitions of five judges of the Islamabad High Court (IHC) against transfer of judges to the said high court and the formation of a new seniority list based on those transfers.

Advocate General Punjab Amjad Pervez presented arguments on the historical and constitutional context of judges’ transfers. He informed the court that in 1955, under an order by the Governor-General, West Pakistan was made into a single unit, and all high courts were merged into one. He submitted that at that time, the judges’ previous service was recognized, and seniority was determined according to the date of appointment. He further explained that when the One Unit was dissolved in 1970, judges were transferred to different high courts, and their previous service was also acknowledged. Similarly, he submitted that when the Sindh and Balochistan High Courts were separated in 1976, the seniority of judges was maintained during the transfers.

Justice Naeem Akhtar Afghan observed that the current case is different because no new court has been formed, nor has any high court been dissolved. Therefore, past precedents may not be applicable, Justice Afghan remarked.

Advocate General Punjab reiterated that historically, whenever judges were transferred, their previous service was recognized. He also referred to the high treason case against Gen (retd) Pervez Musharraf, stating that a special court was formed with judges from five high courts, and the most senior among them was appointed as the head, which indicates that seniority has always been prioritized.

Justice Afghan asked whether, under Article 200 of the Constitution, the transfer of a judge is permanent or temporary, pointing out that the attorney general had himself termed the transfer permanent, and further clarification is required. The advocate general responded that he would also argue about the duration of a transfer and the constitutional powers of the President in this regard. Justice Afghan questioned “the rationale behind transferring the 15th-ranked judge while overlooking 14 more senior judges.” The advocate general replied that the summary was not prepared by just anyone, but by the judges themselves, who are well-versed in the Constitution and law.

Justice Shakeel Ahmed tried to distinguish between the terms “Such Period” and “During the Period.” The Advocate General explained that “Such Period” refers to a specific duration, while During the Period” implies permanence. Justice Shakeel Ahmed noted that the transfer summary did not mention “public interest” anywhere. The Advocate General responded that the term public interest is also not used in Article 200 of the Constitution.

After the Advocate General’s arguments, former PTI Chairman Imran Khan’s lawyer, Idrees Ashraf, began his arguments. When asked how much time he needed, he said 15 minutes, which was also the time estimated by the Attorney General.

Meanwhile, the court adjourned until today (Thursday) wherein, Idrees Ashraf’s arguments will continue, after which the Attorney General will conclude his submissions in rebuttal.