CB seeks clarity on judges' fresh oath

A five-member Constitutional Bench (CB) of the Supreme Court on Friday raised several queries about a fresh oath by the high court judges upon their transfer to another high court and the status of their seniority in case of their new posts.

CB head Justice Muhammad Ali Mazhar told the lawyer for the petitioners in the judges transfer case that there were contradictions in his arguments. He raised the question as to how a judge could take multiple oaths.

When the hearing of the case began, petitioner's lawyer Faisal Siddiqui cited the example of India, where the judges were not asked for their consent for their transfer. Therefore, he added that when the judge was transferred there, his seniority remained unaffected.

In Pakistan, he said that the appointment of the judges was mandatory for the Judicial Commission but it was not mandatory for the president to transfer judges. Justice Mazhar remarked that the president had the constitutional authority to transfer judges.

Sitting on the bench, Justice Salahuddin Panhwar reminded Siddiqui that he had said that he would focus on the issue of seniority in his arguments. The lawyer replied that the transfer of judges was time-bound and cited the appointment of high court judges to the Federal Shariat Court (FSC) for three years.

Justice Mazhar asked the lawyer as to what was the connection between the appointment of judges to the FSC and the issue of transfer.

He said that the status of a judge of the FSC was higher, while the status of a judge transferred from one high court to another high court remained the same.

Siddiqui said that Justice Asif was an additional judge, so how an additional judge could be appointed as an IHC judge upon transfer.

At one point, Justice Naeem Akhtar Afghan said that the authority of the Judicial Commission could not be made ineffective by appointing permanent judges through transfer.

Justice Mazhar asked the lawyer what if the transferred judges were transferred back to their original high court, what would be their seniority there. The lawyer replied that when a judge was sent to the Supreme Court as an acting judge, his seniority in the high court was not affected.

During the hearing, Justice Mazhar remarked that the basic question in the matter was whether or not the transferred judge would take fresh oath, but there were contradictions in the arguments forwarded by the petitioner's lawyers.

On the one hand, Justice Mazhar told Siddiqui, he argued that the transferred judge would have to take a fresh oath while on the other, it was being stated that the transfer could not be permanent. How a judge could take two or three oaths at the same time, he asked.

Justice Mazhar observed that when a judge took a new oath, the old oath would be nullified. He also said that in the Supreme Court there was a difference between an acting judge and a transferred judge. Later the hearing was adjourned until Monday.