Seniority of IHC judges: Justice Mansoor expresses reservation over presidential notification

Business Recorder

02-07-2025

ISLAMABAD: Justice Syed Mansoor Ali Shah expressed his reservation over a presidential notification determining seniority of the Islamabad High Court (IHC) judges, without consulting the Chief Justice of Pakistan and the Chief Justice of the High Courts.
The Constitution Bench of the Supreme Court vide its short order on June 19 asked the President of Pakistan to determine the seniority and nature of transfer of the transferee judges, and held that transfer of judges under Article 200 is within the framework of the Constitution, and transfer (permanently or temporarily) cannot be construed as a fresh appointment.
President Asif Ali Zardari through notification dated June 27 issued declared Sardar Muhammad Sarfraz Dogar as the senior-most judge of the IHC. He also notified that the transfer of Justice Dogar, Justice Soomro and Justice Asif to the IHC was made on a permanent basis.
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On the basis of the notification, the Judicial Commission of Pakistan (JCP) by majority nominated Justice Sarfraz Dogar as the chief justice of the IHC.
Justice Mansoor, in his letter, which he wrote to the JCP secretary, a day before the Commission's meeting, raised serious constitutional concerns regarding the President determining the seniority of the IHC judges.
In the letter, the senior puisne judge, who is now abroad, noted: 'With due deference, it appears that this action was taken without the constitutionally mandated consultation with the Chief Justice of Pakistan and the two respective Chief Justices of the High Courts under Article 200 of the Constitution.'
He stated in his view, the requirement of consultation was a binding constitutional mandate and was not a matter of executive discretion that could be conveniently sidelined. The unilateral determination made without such consultation may lack legal validity, he pointed out.
He added that while the Supreme Court had directed the president to decide on the seniority of transferred judges, such compliance must still operate within constitutional boundaries.
Justice Mansoor further wrote; 'The presidential action in question appears to have been taken in undue haste, which raises concerns about the transparency and propriety of the process concerns that may merit constitutional scrutiny.'
The most senior judge, further pointed out that Article 200 of the Constitution contemplates the temporary transfer of judges, not permanent relocation.
'Treating such a transfer as permanent — and accordingly fixing seniority on that basis — could raise serious constitutional questions, particularly where the foundational procedural safeguards appear to have been bypassed.'
Calling for institutional caution, Justice Mansoor stressed that the matters raised in his letter warranted careful reflection before any further steps were taken. 'I wish to emphasise that these are preliminary concerns, and I remain fully respectful of the judicial process and the ultimate authority of the Supreme Court to conclusively settle these matters,' he stated.
The letter also mentioned that the JCP was urged to delay its decision regarding the appointment of the IHC chief justice until the Supreme Court resolves the underlying constitutional issues. 'Proceeding further at this stage may risk unsettling foundational constitutional principles, including the rule of law, separation of powers, and judicial independence,' he warned.
Justice Mansoor also requested that his letter be officially presented before the commission and its contents recorded in the meeting's minutes.
He clarified that the presidential notification dated June 27, 2025, necessitated the letter, adding: 'All observations made in the letter are tentative, offered without prejudice, and subject to the final determination by the Supreme Court on the relevant constitutional issues currently under consideration.'
Copyright Business Recorder, 2025