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Express Tribune
21-02-2025
- Politics
- Express Tribune
A petition from judges!
Listen to article The executive's obsession to 'manage' the superior judiciary is now taking a toll on the rule of law. The unrest prevalent among senior judges, who are being denied their right of promotion as per law and the Constitution, is highly unfortunate. Regrettable, they are not being heard. This injustice against the Justices themselves is squarely evident at the Supreme Court as well as the IHC, as the controversial 26th amendment has been used as a ploy to supersede judges on the premise of the plausible leaning of the junior jurors with the government of the day. Another letter from five senior most IHC judges has once again laid bare the arm-twisting by the executive. The judges have openly questioned the rationale behind the transfer of three judges to the IHC from other High Courts and the out-of-turn elevation of Justice Sarfraz Dogar as IHC's senior puisne judge. The letter, addressed to the Supreme Court, has also been converted into a petition, wherein the five IHC judges have prayed that the "president does not have unfettered and unbridled discretion to transfer judges from one high court to another, under Article 200(1) of the Constitution, without a manifest public interest, and in a manner that hampers the principles of independence of judiciary and separation of powers." Will the contents of this letter be heard by the Chief Justice and the Constitutional Bench? Or will this letter also be buried beneath the carpet as has been the case with an earlier letter from six IHC judges who complained against "blatant interference in their domain"? What cannot, however, be denied is the fact that these incursions from the executive have created an atmosphere of cooption and coercion, which is detrimental not only to the principle of separation of powers as enshrined in the Constitution but is also in contravention of the independence of judiciary. This condemnable convention of sidelining eligible judges, and undermining stipulated norms of the Constitution is disgusting and must be shunned. The prevailing discontent among judges must be addressed instantly.
Express Tribune
21-02-2025
- Politics
- Express Tribune
Five IHC judges move apex court for justice
Five judges of the Islamabad High Court (IHC) on Thursday approached the Supreme Court of Pakistan to reclaim their seniority in light of changes to the ranking following the transfer of three new judges, particularly Justice Sarfraz Dogar from the Lahore High Court who became the senior puisne judge replacing Justice Mohsin Akhtar Kayani. The judges – Justice Mohsin Akhtar Kayani, Justice Tariq Mehmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, and Justice Saman Rafat Imtiaz — filed a constitution petition in the apex court through lawyers Muneer A Malik and Barrister Salahuddin Ahmed. They requested the top court to declare that the president does not have unfettered and unbridled discretion to transfer judges from one high court to another, under Article 200(1) of the Constitution, without a manifest public interest, and in a manner that hampers the principles of independence of judiciary and separation of powers. Besides Justice Dogar, the other two judges who were transferred to the IHC under Article 200 of the Constitution are: Justice Khadim Hussain Soomro and Justice Muhammad Asif. Commenting on the content of the petition, Abdul Moiz Jaferii advocate says that it tells you a lot about the health of a country's judiciary when serving judges petition their own Supreme Court. "Such are the times. This is a necessary intervention by judges where the bars around the country have let them down." He further states that in this atmosphere of cooption and coercion, the IHC justices continue to fuel the hope of independence which they themselves ignited: by writing to explain the interference in their judicial work by the executive. "The silence of the Supreme Court on that issue is deafening. Let's see what they do here." Former additional attorney general Tariq Mahmood Khokhar says that while the transfer of a judge from one high court to another is constitutionally valid, it should never be used as a form of punishment either for the judge being transferred or for the high court receiving the judge, at both the institutional and individual levels. "Such transfers must not be employed as a tool for controlling or undermining a high court or its judges, as such actions would constitute mala fides and an abuse of power." Khokhar states that the recent transfer of three high court judges, alongside the appointment of one as acting chief justice, has led to both a quantitative and qualitative shift. "Through the formation of benches and the allocation of cases, the independence and impartiality of these judges are in danger of being effectively undermined. They will increasingly be excluded from sitting on important benches hearing significant cases, relegated instead to less consequential matters." "This is the plight of the Islamabad High Court, where the denizen judges have seen their seniority surpassed, their eligibility for the office of chief justice relegated, and their roles marginalised. Consciously or not, the transfers and appointment of an acting chief justice has eroded judicial independence," he adds. Khokhar also noted that crucially, an independent high court and its independent and impartial judges have been punished. Petition The five judges, in their petition, tell the Supreme Court that, "there seem to be efforts made to undermine the credibility of the six judges at the IHC. There has been a concerted campaign against the judges, maligning them on all forums". It is also stated that the Supreme Court, cognizant of the executive's attempts to undermine independence of the judiciary, in the Al-Jehad Trust case, presciently noted that the transfer powers of the president under Clause (1) of Article 200 of the Constitution, ought not, under the Constitution, be deployed in a manner to punish the transferred judge. But the concern regarding independence of the judiciary remains central, even when the transfer power under Article 200(1) is invoked to punish serving judges of the high court to which the transferred judges have been appointed. The petition raises vital questions as to the interference into the functioning of the IHC, through the invocation of powers, under Clause (1) of Article 200 of the Constitution that has never been used in this manner before in the history of Pakistan. The transfers from other high courts, if construed to be permanent, bypassing the requirement of taking a fresh oath mandated by law, and upending the inter-se seniority of the IHC, also defeat the very conception of federalism. The catapulting of a judge at the 15th seniority at the Lahore High Court to an acting chief justice of the IHC, raises important questions of how the transfer power, under Clause (1) of Article 200, may have been used as a way to punish and sideline the already serving judges at the IHC. It also raises questions as to the steps hastily taken to disempower the already serving judges of the IHC, wresting the administrative control out of their hands, and bestowing it on the newly transferred judges, with no administrative experience in their own relevant high courts. This speaks to the arbitrary exercise of power. In doing all of this, the Constitution, its undergirding principles, judicial norms and conventions, have all been disregarded. The petition further states that the history of Pakistan includes vast chapters when authoritarian regimes have held constitutional principles in 'abeyance' and undermined judicial independence. It is also a matter of historical record that during such dark times, emasculation of the judiciary may not have been possible but for the co-option of men in robes who had sworn oaths to protect and defend the Constitution. But instead of abiding by their oaths, they chose to articulate 'doctrines of necessity' justifying the mutilation of the Constitution and its principles. "The jurisprudence of superior courts in such times rationalized and normalised the executive's entrenchment of power. And only when the power of the reigning autocrat began to wane did judges spruce themselves up and declare that the 'doctrine of necessity' was dead and buried. "It is a matter of historical record, that unfortunately doesn't project a flattering light on the judiciary's role in protecting the Constitution and fundamental rights, that superior courts have taken a strong position on the independence of the judiciary only once the threat of executive's overreach has momentarily receded. It is also stated that if the reason for the transfers is that there must be greater representation of different federating units in the IHC, then why could that concern not be addressed through the direct appointment process under Article 175A? "Even otherwise, it is hard to fathom what the relevant considerations were for transferring judges to the IHC. For instance, was there a requirement of a judge of particular subject-matter expertise in the IHC? Were relevant subject-matter expertise of the transferee judges considered? Were all judges from other High Courts considered to form a pool from which to transfer judges to IHC? Was it considered as to what the holistic make-up of IHC would be with regards to subject-matter expertise, with and without the transfers? The petition states that it is not clear if other judges higher in seniority than the transferred judges in their respective high courts were considered for transfer to the IHC. For instance, a judge ranked at No 15 of the seniority list at the Lahore High Court has been transferred to the IHC. Were all those above him in seniority considered for such transfer? On what basis exactly were the respected judges transferred to IHC earmarked for such transfer. It is also contended that the issuance of the administration committee notification and DPC notification are contrary to the 2011 Service Rules, which provides the definition of an Administration Committee. "The Administration Committee under the 2011 Service Rules has to comprise of the Chief Justice and two senior judges. Senior judges, meanwhile, have been bypassed. The Administration Committee Notification also is not in accordance with Lahore Rules and Orders, since the Administration Committee there has been specified to comprise seven members, with the Chief Justice and the Senior Puisne judge as ex-officio members."
Express Tribune
20-02-2025
- Politics
- Express Tribune
Bail granted to over 120 Nov 26 protesters
The Islamabad High Court (IHC) has approved bail for more than 120 PTI workers arrested in connection with the Nov 26, 2024 protest against a surety bond of Rs20,000 per person. The court directed the detained workers to submit an affidavit at the respective police station, pledging not to commit such an offence in the future. A two-member IHC division bench, comprising Acting Chief Justice Sarfraz Dogar and Justice Muhammad Asif heard the bail petitions of the PTI workers. Petitioners' counsels Ali Bukhari, Babar Awan and Murtaza Turi along with other legal representatives appeared before the court.
Express Tribune
20-02-2025
- Politics
- Express Tribune
IHC judges move Supreme Court over seniority dispute
Listen to article Five judges of the Islamabad High Court (IHC) have filed a petition in the Supreme Court of Pakistan, challenging judicial transfers and their impact on seniority. The 49-page constitutional petition, filed under Article 184(3) through senior lawyers Munir A. Malik and Barrister Salahuddin, argues that the President of Pakistan misused Article 200(1) by overriding the Judicial Commission's authority in transferring judges. The petition contends that judicial transfers cannot be made without public interest and should not affect the seniority list. It further states that Article 200 only allows temporary transfers, and the current process violates Article 175(A) of the Constitution. The judges have urged the Supreme Court to invalidate the Islamabad High Court's current seniority list, citing its inconsistency with Article 194 and the Constitution's Third Schedule. The petition specifically challenges the appointment of Justice Sarfraz Dogar as acting Chief Justice of IHC, stating that he had only served two weeks in the high court before assuming administrative control. It also calls for Justices Khalid Soomro and Muhammad Asif to be barred from judicial work. The President of Pakistan, the federal government, the Judicial Commission, the Supreme Court registrar, and multiple high court registrars have been made respondents in the case. The five petitioning judges are Justice Mohsin Akhtar Kayani, Justice Babar Sattar, Justice Tariq Mehmood Jahangiri, Justice Saman Rafat Imtiaz, and Justice Sardar Ejaz Ishaq Khan. The petition also asserts that the failure of transferred judges to take a fresh oath is a constitutional violation. It claims that seniority begins in the high court where a judge first takes the oath, and altering it through transfers is an unconstitutional interference in IHC's administration. The Supreme Court has yet to schedule a hearing on the matter. Last week, Justice Sardar Muhammad Sarfraz Dogarwas appointed as acting chief justice of the IHC, a move that has sparked reservations among some judges over seniority. A notification issued by the Ministry of Law announced that President Asif Ali Zardari has appointed Justice Sarfraz Dogar as the acting chief justice of the IHC. The appointment, made under Article 196 of the Constitution, will take effect from the date Justice Dogar takes the oath of office and remain in place until a regular Chief Justice is appointed. The appointment followed Justice Aamer Farooq's elevation to the Supreme Court (SC) earlier this week.
Express Tribune
14-02-2025
- Politics
- Express Tribune
Justice Sarfraz Dogar takes oath as acting IHC CJ
Listen to article President Asif Ali Zardari on Friday administered the oath to Sarfraz Dogar as acting Chief Justice of Islamabad High Court (IHC) at a ceremony held here at the Aiwan-e-Sadr. The event began with the playing of the national anthem followed by recitation from the Holy Quran. According to official notification, President of Pakistan appointed Justice Muhammad Sarfraz Dogar as Acting Chief Justice of Islamabad High Court with effect from the day he takes oath of his office till the appointment of regular chief justice. A notification issued by the Ministry of Law late Wednesday announced that President Asif Ali Zardari had appointed Justice Sarfraz Dogar as the acting chief justice of the IHC. The appointment, made under Article 196 of the Constitution, took effect from the date Justice Dogar took the oath of office and was to remain in place until a permanent chief justice was appointed. This appointment followed Justice Aamer Farooq's elevation to the Supreme Court (SC) earlier that week. Justice Dogar, who had previously been transferred from the Lahore High Court (LHC), was set to serve until a permanent chief justice was appointed. The president also approved the elevation of seven judges to the Supreme Court, including Justice Aamer Farooq, Justice Muhammad Hashim Khan Kakar, Justice Muhammad Shafi Siddiqui, Justice Salahuddin Panhwar, Justice Ishtiaq Ibrahim, Justice Shakeel Ahmad, and Justice Miangul Hassan Aurangzeb. The decision was opposed by Justices Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan, and Saman Rafat. The judges of the IHC had decided to challenge the rejection of their representation.
