IHC judges raises questions on appointment of 'transferred judge' as CJ
Pakistan
The letter was signed by IHC’s senior puisne judges
ISLAMABAD (Dunya News) - In a significant development on the judicial front, the judges of Islamabad High Court (IHC) on Friday penned a letter to the chief justices (CJ) of the Supreme Court and high courts in which they expressed concerns over the appointment of a transferred judge to the IHC's top slot.
They urged them to take a stand and resist such a development.
According to the Judicial Commission of Pakistan (JCP) new rules which came into effect last year, the seniority criterion was not followed to appoint the top-most judge. The JCP proposed that the chief justice of a high court could be appointed from among the panel of five senior-most judges.
The letter was signed by IHC’s senior puisne judge Justice Mohsin Akhtar Kayani and Justices Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan and Saman Rafat Imtiaz. The names of Justices Arbab Muhammad Tahir and Miangul Hassan Aurangzeb were also in the letter but didn’t bear their signatures.
“The high courts are independent and autonomous. The justices who are elevated to a particular high court, take oath, under Article 194 of the Constitution, with respect a particular province, or for the purposes of the IHC, with respect to the Islamabad Capital Territory. Since the passage of the Eighteenth Amendment to the Constitution in 2010, and during the times of political democratic governments in Pakistan, there has been no precedent of permanent appointments to the high courts through the invocation of Article 200 of the Constitution,” the letter said.
It said that despite a major overhaul to the judicial framework under the 26th amendment, the legislature did not allow for permanent transfers to become constitutionalised as envisaged in the proposal.
“Article 200 did not undergo any changes. The conception of each court being separate and autonomous, under the system of federalism, has remained intact.”
The letter said that the purpose of the LHC judge’s alleged transfer was reported to be a consideration for the IHC’s top post, adding that this “just cannot be under the Constitution”.
It argued that the transferred judge would need to take a fresh oath under Article 194 of the Constitution, for serving in a new high court and thus their seniority would be determined from the date of the oath for the purpose of serving at the IHC.
The letter pointed out that the Supreme Court had already held that the seniority of a judge was determined from their oathtaking date at the high court they were to serve at.
“Hence, a transferred judge, required to take a fresh oath, would be at the bottom-end of the seniority list, at the date of such transfer, despite his prior service at another high court. The transferred judge, as a result, may find such a situation to be unfortunate, which, may, in turn, lead to friction, jeopardising the smooth functioning of the court.”
