Seven judges of the Islamabad High Court on Friday penned a letter to chief justices of Supreme Court and high courts, expressing concerns over recent media reports claiming that a transferred judge would be considered for the post of chief justice of the federal territory’s court.
“We, the undersigned justices of the Islamabad High Court are writing in view of widely reported news by the media that has since been addressed by multiple bar associations as well, that a justice from the Lahore High Court is to be transferred to the Islamabad High Court. This transferred judge would then be considered for appointment as the Chief Justice of the Islamabad High Court,” the IHC judges wrote.
The letter was signed by Justice Mohsin Akhtar Kayani, Justice Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan, Arbab Muhammad Tahir, Saman Rafat Imtiaz and Miangul Hassan Aurangzeb.
The letter comes as incumbent Chief Justice Aamer Farooq is being considered for elevation to the Supreme Court. The Judicial Commission of Pakistan (JCP), scheduled to meet on Feb 10, would pick eight judges from five high courts.
Traditionally, the senior puisne judge of a high court is appointed as the chief justice. However, the JCP last year introduced new rules to bypass the seniority criterion following the enactment of the 26th Amendment.
The judicial commission proposed that the chief justice of a high court could be appointed from among the panel of five senior-most judges.
In the letter, the IHC judges noted that there have also been reports that a proposal to transfer another judge from Sindh High Court to IHC may also be under consideration.
The letter noted that the process of transfer from one high court to another is governed by Article 200 of the Constitution, which provides, under sub-clause (1), that “[1]he President may transfer a Judge of a High Court from one High Court to another High Court” but only “after consultation by the President with the Chief Justice of Pakistan and the Chief Justices of both High Courts”.
“Any transfer, such as the one being reported, can only happen after the President consults with the Chief Justice of Pakistan and the respective Chief Justices of both, the court from where the judge is being transferred, and the court to which the judge is being transferred,” it stated.
Citing Al-Jehad case, the IHC judges said that this process of consultation, as enunciated by the Supreme Court, necessarily entails that it be “effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play”.
The judges urged the CJP Yahya Afridi not to advise the Pesident to undertake any such transfer, noting that the purpose of the transfer from the Lahore High Court, as being reported, is that the transferred judge is to be considered for the position of the Chief Justice of the Islamabad High Court.
“This just cannot be under the Constitution. The transferred judge would need to take a fresh oath under Article 194 of the Constitution, for serving in a new High Court. Correspondingly, his seniority would be determined from the date of the oath he takes for the purposes of serving at the Islamabad High Court,” the letter stated.
“Such a permanent transfer of a judge to the Islamabad High Court would be against the spirit of the Constitution, detrimental for the independence of judiciary, usurpation of established judicial norms, and also wholly unjustifiable. It would set a pernicious precedent whose ramifications are going to be extremely far-reaching,” it concluded.