Dissenting judges call IHC transfers 'malicious'

ISLAMABAD:

Two members of the Supreme Court's constitutional bench (CB) have observed that the transfer of three judges from different high courts to the Islamabad High Court (IHC) was tainted by malice and aimed at taking control of the IHC.

In a 40-page dissenting note authored by Justice Naeem Akhtar Afghan and endorsed by Justice Shakeel Ahmad, the judges have noted that the permanent transfer of three judges to the IHC had dealt a "serious blow to the independence of the judiciary."

On Feb 1, Ministry of Law issued a notification for the transfer of Justice Sardar Muhammad Sarfraz Dogar, Justice Khadim Hussain Soomro and Justice Muhammad Asif—respectively from the Lahore High Court (LHC), the Sindh High Court (SHC) and the Balochistan High Court (BHC)—to the IHC.

Following this transfer, endorsed by the president, the IHC issued a new seniority list, ranking Justice Dogar as the senior puisne judge. Five IHC judges filed representations against this seniority list.

However, the then IHC chief justice, Aamer Farooq rejected these representations. The IHC judges and some other petitioners including Imran Khan challenged the ministry's notification as well the new seniority list in the Supreme Court, whose five-member CB heard the matter.

On June 19, the CB led by Justice Muhammad Ali Mazhar declared that transfer of the three judges was not unconstitutional with a majority ruling of 3 to 2. Justice Afghan and Justice Ahmad, however, dissented from the majority order.

The dissenting note said the process for transferring three particular judges to the IHC was initiated and completed by the Ministry of Law with unnecessary haste—not in the public interest but, prima facie, with the motive to deprive the then senior puisne judge, Mohsin Akhtar Kayani, of consideration/appointment as the IHC chief justice.

"[it also aimed at taking] control of the IHC and district judiciary of [Islamabad] from the sitting judges of the IHC, handing it instead to the transferee judges and additional judges under the supervision of Justice Dogar, first as a senior puisne judge and later as acting CJ and CJ of IHC."

The dissenting opinion said in law, an action driven by ulterior motives constitutes malice in fact, while an action so unreasonable, improbable, or blatantly illegal that it falls outside the scope of the law under which it is purportedly taken constitutes malice in law. Both dissenting judges held that the transfers in question suffered from malice in fact as well as malice in law.

They emphasized that the rule of law and strict adherence to the Constitution by all state organs and institutions are key to Pakistan's prosperity and national interest. Executive orders, they warned, must fall within constitutional limits and should not be arbitrary or capricious.

They cautioned the government that short-term gains achieved by violating the Constitution would ultimately undermine the nation's long-term interests in stability, legitimacy, and the rule of law.

They further observed that the record revealed no criteria for selecting the three transferee judges for posting to the IHC.

"Justice Dogar was at serial No 15 in the seniority list of the LHC, Justice Khadim Hussain Soomro was at serial No 20 in the SHC, while Justice Muhammad Asif had only recently been appointed an additional judge of the BHC on January 18, 2025."

The dissenting judges wondered why all judges senior to Justice Dogar in the LHC, Justice Soomro in the SHC, and Justice Asif in the BHC were ignored or not considered for transfer to the IHC.

They also noted that in all letters written by the Ministry of Law seeking the consent of the transferee judges and concurrence of the high court chief justices and the chief justice of Pakistan, neither the nature of the transfer (permanent or temporary) nor the issue of seniority or fresh oaths was mentioned. No input was sought from the relevant authorities.

They said Chief Justice of Pakistan Yahya Afridi had also been kept in the dark by the ministry about the nature of the transfers and the seniority of the transferee judges.

The note further held that under Article 200(1) of the Constitution, the president may order the transfer of a high court judge to another high court, but such a transfer cannot be permanent and must be temporary.

"Instead of filling the five available vacancies of judges in the IHC, only two were filled on January 17, 2025, while three vacancies were deliberately left vacant to be filled subsequently by transferring three judges from different high courts under the garb of the president's discretionary powers under Article 200(1)," the dissent noted.

The opinion said that the transfers created turbulence within the IHC, damaging collegiality among its judges and disrupting smooth functioning, thereby causing hardship to litigants. They added that the transfers had frustrated the legitimate expectations of the sitting IHC judges.