ISLAMABAD: The Supreme Court`s Constitutional Bench (CB), by a majority of 3-2, ruled that the transfer of three judges from provincial high courts to the Islamabad High Court (IHC) was in line with the Constitution.

However, the bench left it up to the president of Pakistan to determine the seniority amongst judges, based on their service records.

The short order was announced on Thursday after a five-judge benchheard petitions filed by five IHC judges, the Karachi Bar Association, the IHC Bar Association, and others.The petitioners had challenged the transfer of justices Sardar Mohammad Sarfraz Dogar, Khadim Hussain Soomro and Muhammad Asif from Lahore, Sindh and Balochistan high courts, respectively.

The controversy revolved around the alteration of the seniority list of IHC judges after these transfers, as Justice Dogar was made the senior puisne judge, which paved the way for his appointment as the acting IHC CJ after Justice Aamer Farooq`s elevation to the SC.

The verdict, announced by Justice Muhammad Ali Mazhar, who headed the five-judge bench, noted the transfer notification issued on Feb 1 was `within the framework of the Constitution and cannot be declared ultra vires` In normal circumstances, the chief justice of the high court concerned has the power to settle the issue of judges` seniority, the order said, adding in this case, the matter was related to the transferredjudges.

Thus, the seniority issue `is not exactly inter-se within the existing strength of judges of one and the same high court but cropped up between the transferee judges and the judges that alreadyexisted prior to the transfer`.

The order reasoned since there was no notional or unified cadre or seniority list of high court judges, the terms and conditions of transfer including seniority should have been taken up by the president at the time of issuing the notification.

The bench partially sent the matter back to the president, asking him to determine the seniority without altering the transfer notification, after examiningthe service record oftransferred judges as soon as possible, including the question of whether these transfers were permanent or temporary.

Until the seniority is determined, Justice Dogar will continue as the acting chief justice of IHC.

The verdict explained the transfer under Article 200 cannot be construed as a fresh appointment.

The powers of transfer conferred to the president in the Constitution `cannot be questioned on the anvil or ground that if the posts were vacant in IHC then why they were notfilled up by JCP through fresh appointments`.

The order stated the transfer from one high court to another can only be made if vacancies are available in the high court.

Any transfer of judges which doesn`t increase the court`s sanctioned strength `can only be regarded as a mere transfer`.

Judicial independence undermined The dissenting note added that relevant material facts were concealed from the top judges and the transfer was completed in `unnecessary haste and thus suffering from mala fide in facts as well as law`.

Justices Naeem Akhtar Afghan and Shakeel Ahmed, who disagreed with the majority view, remarked that the transfer process lacked meaningful, purposive and consensus-oriented consultation with the chief justices of Islamabad, Lahore, Sindh and Balochistan high courts and the chief justice of Pakistan.

`It has not been made by the president in the public interestwho also failed to apply his independent mind with objective opinion.

The transfer violates articles 2A, 4 and 25 of the Constitution and has `undermined the independence of judiciary, due process and principle of equality`.

The dissenting judgement also commented on the March 25, 2024, letter by six IHC judges who had complained of alleged interference by ISI officers in judicial matters.

They said the petitioners` counsel contended the letter has `triggered the process for transfer of three judges to IHC from LHC, SHC and BHC`.

However, these contentions `cannot be believed` as the intelligence agencies, including ISI, have no role under the Constitution in the appointment or transfer of judges, added the dissent note. `Being subordinate to the executive, the intelligence agencies, including ISI, cannot override the executive, the Judiciary, the constitutional bodies and the constitutional office holders.