Idea of 'geographical distinction' not valid
While giving his consent to the transfer of a judge from the Sindh High Court (SHC) to the Islamabad High Court (IHC), the then chief justice of the SHC had raised questions on the transfer of judges to the capital's high court on the basis of geographical distinction.
The federal government and registrars of three high courts have submitted the record regarding the transfer of three judges from different high courts to the IHC to the Supreme Court whose five-member constitutional bench (CB) will resume hearing a slew of petitions filed against this transfer.
The record reveals interesting facts. The Ministry for Law, while initiating the process regarding transfer of the judges on January 28, had moved a summary to the prime minister. The summary said currently no judge from rural Sindh served at the IHC while there is only one judge in the court from Punjab.
"Therefore, in terms of Schedule-V-B of the Rules of Business, 1973 read with Article 48 of the Constitution of Pakistan, the Prime Minister of Pakistan may advise the President to authorize Ministry of Law and Justice to initiate the process under clause (1) of Article 200 of the Constitution to seek consent of Lahore High Court (LHC) Justice Sardar Muhammad Sarfraz Dogar, SHC Justice Khadim Hussain Soomro and Balochistan High Court [Justice Muhammad Asif] to the IHC."
After approval of the summary, the process was initiated by the Ministry of Law.
In response to the ministry's letter, SHC Registrar Suhail Muhammad Laghari stated that he had been conveyed consent by SHC CJ Muhammad Shafi Siddiqui to the transfer.
"The summary along with the letter makes reference to a geographical distinction that perhaps does not find mention in the Constitutional provision for transfer of a Judge from one High Court to another.
"The concurrence herein conveyed, therefore, is in pursuance of Article 200 of the Constitution coupled with the consent conveyed by the learned Judge and irrespective of any geographical distinction," said the letter sent by the SHC to the ministry.
Chief Justice of Pakistan Yahya Afridi while giving consent had noted that the proposed transfer of the three judges from the high courts of different federating units to the IHC completely syncs with the spirit of federalism as enshrined in the Constitution.
"It is also in conformity with section 3 of the IHC Act, 2010. The thoughtful consideration behind the proposal illustrates resolve in providing an equitable share to linguistic diversity of our country and fair chance of representation to all the federating units in the High Court of the common capital of the Federation i.e., IHC," said the letter.
However, the CJP had a different view about the seniority of transferred judges. His view was not accepted by majority members of the Judicial Commission of Pakistan (JCP).
Meanwhile, Lahore High Court Bar Association (LHCBA) through Waqar Rana advocate submitted additional grounds against the transfer of three judges.
The petition contended that CJP has the primacy in the matter of transfer of a judge from one high court to another and has also a constitutional right and obligation to move a summary for that purpose.
"The Executive branch of the government could not initiate such a transfer process on its own. In the instant case, said summary was purportedly moved by the Executive with mala fides and for extraneous grounds. The subsequent Transfer Notification was thus void.
"The CJP was obligated to consult with his senior judges of the Supreme Court before consultation with the Executive on the matter of transfer of judges from one High Court to another as per law laid down by this Hon'ble Court.
"It is submitted that the transfer of the respondent judges could take place only after a consensus was reached amongst the senior most judges of the Supreme Court of Pakistan," it added. '
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