Judges transfer case lands in FCC

Six-member bench set to hear IHC judges' appeal tomorrow

ISLAMABAD:

The newly formed Federal Constitutional Bench (FCC) is scheduled to hear the intra-court appeals filed by five Islamabad High Court (IHC) judges against a Supreme Court's split order endorsing transfer of three judges from different high courts to the IHC.

According to a cause list issued by the FCC, a six-member bench led by Chief Justice Amin-ud-Din Khan will hear the intra-court appeal tomorrow (Monday) at 11:30am.

The bench also includes Justice Hasan Azhar Rizvi, Justice Ali Baqar Najafi, Justice KK Agha, Justice Rozi Khan Barrech, and Justice Syed Arshad Hussain Shah.

However, the petitioner judges have challenged the decision to refer the case to the FCC, requesting the newly formed court to return the intra-court appeals back to the Supreme Court.

They have argued that the appeals were shifted to the FCC under the 27th Constitutional Amendment, but the 27th amendment itself is contrary to the Constitution.

They stated that the legislature, executive, and judiciary are all created under the Constitution of 1973, which defines the separation of powers and limits of each institution.

The petition stated that constitutional amendments cannot be used to abolish judicial authority and that Supreme Court judgments clearly uphold the principle of separation of powers.

In February, the 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, the Sindh High Court and the Balochistan High Court — 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 — Justice Mohsin Akhtar Kayani, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, Justice Saman Rafat Imtiaz and Justice Tariq Mehmood Jahangiri — filed representations against this seniority list. 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 constitutional bench (CB) heard the matter.

On June 19, a 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.

The majority opinion was supported by Justice Mazhar, Justice Shahid Bilal, and Justice Salahuddin Panhwar. However, Justice Naeem Akhtar Afghan and Shakeel Ahmad dissented from the majority decision. The IHC judges filed an intra-court appeal against the order.