TERENCE J SIGAMONY

ISLAMABAD: The federation submitted that the process initiated under Article 200 of the constitution for the transfer of judges from Punjab, Sindh and Balochistan High Courts demonstrate and deliver transparency and in no way undermine the independence of judiciary.

The federal government on Wednesday submitted its reply against the petitions regarding transfer of judges from other High Courts to Islamabad High Court (IHC) and seniority list of IHC judges. It urged the apex court to dismiss all the petitions.

A five-member Constitutional Bench, headed by Justice Muhammad Ali Mazhar, will resume hearing of IHC five judges – Justice Mohsin Akhtar Kayani, Justice Tariq Mahmood Jahangri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan and Justice Saman Rafat Imtiaz, Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan, Karachi, Lahore and Islamabad High Court Bar Associations’ petitions today (Thursday).

Three judges namely, Justice Sardar Muhammad Sarfraz Dogar from Lahore High Court(LHC), Justice Khadim Hussain Soomro from Sindh High Court (SHC), and Justice Muhammad Asif from Balochistan High Court (BHC) were transferred to the IHC on 1st February 2025, through a notification, issued under clause (1) of Article 200 of the Constitution.

The federal government maintained that judges are not required to take a fresh oath following their transfer, as a transfer under Article 200 does not constitute a new appointment. “Article 200(1) deals with the power of the President to transfer judges from one High Court to another, thereby attributing a clear permanence to the transfer,” it stated.

The argument that the transfers are temporary was also rejected, with the government stating that the Constitution does not mention any such provision for temporary transfers of judges. “No use of the term “for such period” or “during the period” in clause (1) of Article 200 clearly reflects that the transfer there-under, unlike clause (3), not in the nature of a temporary arrangement. Permanency of transfer under Article 200(1) is also evident from the fact that to send the transferee judge back to his parent High Court, the President will have to follow the entire procedure provided under Article 200(1) again,” it added.

The federation maintained that in the said Article, it is the chief justice of the particular high court who identifies the need to increase the number of judges in its High Court.

It contended that Section 3 of the Islamabad High Court Act, 2010 provides that the IHC shall consist of a Chief Justice and 12 other judges to be appointed from the provinces and other territories of Pakistan, in accordance with the Constitution. The federation response said that keeping in line with the mandate of said section and sanctioned strength of the IHC, and in terms of Schedule V-B of the Rules of Business, 1973 read with Article 48 of the Constitution, a summary was initiated by the Ministry of Law and Justice, and the President on the advice of the Prime Minister authorised the Ministry to initiate process under Article 200(1) of the Constitution.

The federal government highlighted that prior to initiating the process under Article 200(1), the Judicial Commission of Pakistan (JCP) on January 1, 2025 appointed two additional judges to the IHC while leaving three positions vacant.

It submitted that the entire process highlights that the decision lies in the hands of the judge being transferred, respective Chief Justices of the High Courts and the Chief Justice of Pakistan. Refusal by any one of them would have resulted in the cessation of the transfer process.

The power of the President to transfer a Judge under Article 200(1) is very limited. The real power lies with the Chief Justice of Pakistan, two Chief Justices of respective High Courts and the transferee Judge. The IHC must always be a representative court and the current serving judges of the IHC are fully reflective of that. Presently, Justice Arbab Muhammad Tahir is from Balochistan, Justice Saman Rafat Imtiaz is from Sindh (urban) and the ex-CJ of the IHC Justice Amer Farooq was from Punjab.

“With the present facts of the case, the transfer of judges from Sindh, Balochistan and Punjab, being the different federating units, to the IHC is in harmony with the spirit of federalism. These transfers ensure a fair representation of the federating units and promote diversity in a court of the federal capital; i.e., the IHC.”

The reply mentioned that if it is accepted that a judge transferred from one High Court to another High Court requires fresh oath then every time an Additional Judge’s term is extended, he/ she would have to take a fresh oath.

A transfer takes place under Article 200 which does not equate to entering upon office and therefore the requirement of a fresh oath cannot be countenanced. Therefore, no fresh oath is required.

No separate oath is provided for the IHC, and the judges of the IHC take the same oath which the judges of the High Courts of all the provinces take.

The transferred judges, having already taken that oath, cannot possibly be required to take any other oath, which even otherwise is not provided by the Constitution.