President Asif Ali Zardari on Saturday approved the transfer of a Lahore High Court (LHC) judge, along with two others, to the Islamabad High Court (IHC) a day after a letter by five judges of the federal capital’s court expressed concern about such a move.
A notification by the Ministry of Law and Justice said President Zardari approved the transfers of LHC’s Justice Sardar Muhammad Sarfraz Dogar, the Sindh High Court’s (SHC) Justice Khadim Hussain Soomro and the Balochistan High Court’s Justice Muhammad Asif to the IHC under clause (1) of Article 200 of the Constitution.
Article 200 of the Constitution says: “The president may transfer a judge of a high court from one high court to another high court, but no judge shall be so transferred except with his consent and after consultation by the president with the chief justice of Pakistan (CJP) and the chief justice of both the high courts.”
The development comes a day after five of the 10 IHC judges formally opposed Justice Dogar’s transfer, warning that his elevation as the IHC chief justice would violate constitutional procedures and judicial norms.
The letter – signed by Justices Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan and Saman Rafat Imtiaz – was addressed to CJP Yahya Afridi, IHC Chief Justice Aamer Farooq, LHC Chief Justice Aalia Neelum and SHC Chief Justice Mohammad Shafi Siddiqui and raised serious concerns over the possible transfer.
Interestingly, while the names of Justice Miangul Aurangzeb and Justice Arbab Tahir were also included in the letter, it did not bear their signatures.
The letter came amid speculation that Justice Dogar could be appointed as the next IHC chief justice, as current Chief Justice Aamer Farooq is expected to be elevated to the Supreme Court, with the Judicial Commission of Pakistan (JCP) set to finalise appointments on Feb 10. The JCP will pick eight judges from five high courts.
Justice Dogar will now be among the panel of five judges vying for the vacant position of the IHC chief justice.
The five IHC justices had formally expressed their opposition to the then-reported transfer, particularly if the purpose was to consider the transferred judge for appointment as chief justice. In the strongly worded letter, the judges had raised constitutional and procedural concerns, arguing that such a move would undermine judicial independence, violate the Constitution of Pakistan and set a dangerous precedent.
Speculation about Justice Dogar’s transfer was under way as far back as at least last month when it was reported that the judicial bureaucracy was reportedly planning to bring a LHC judge to lead the IHC after the incumbent CJ’s elevation. According to sources, a SHC judge was also a possibility to be transferred to the IHC.
Traditionally, the senior puisne judge of a high court is appointed as the chief justice, but the JCP last year introduced new rules to bypass the seniority criterion in light of the 26th Amendment. The JCP proposed that the chief justice of a high court could be appointed from among the panel of five senior-most judges.