• Justices Dogar, Soomro and Asif refuse to engage counsel; will accept whatever fate court decides for them, AGP tells CB
• KP govt backs stance of ‘aggrieved’ judges, says transfer undermines constitutional procedure, JCP’s role in their appointment
• Bench to conduct daily hearings from Tuesday; seeks concise statements, seniority lists from high courts
ISLAMABAD: Three judges, whose transfer to the Islamabad High Court earlier this year has been challenged before the Supreme Court, left themselves at the mercy of the Constitutional Bench after refusing to engage a lawyer to contest the case.
IHC Acting Chief Justice Sardar Muhammad Sarfraz Dogar, Justice Khadim Hussain Soomro, and Justice Muhammad Asif were transferred to the IHC by the president under Article 200(1) of the Constitution.
Attorney General for Pakistan (AGP) Mansoor Usman Awan informed the bench that the three judges had conveyed to him that they would not like to be represented in the court by any lawyer and accept whatever the court determined about their fate.
At the last hearing on April 14, the bench issued notices to different respondents named in the petition moved by five IHC judges, who challenged the transfer of the judges.
Notices were also issued to the Judicial Commission of Pakistan (JCP), registrars of the Supreme Court and four high courts, the AGP, as well as the advocates general of different provinces.
Headed by Justice Muhammad Ali Mazhar, the five-judge Constitutional Bench had taken up a set of petitions moved by five IHC judges namely Justice Mohsin Akhtar Kayani, Justice Tariq Mehmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan and Justice Saman Rafat Imtiaz, with a plea not to treat the three transferred judges as IHC judges until they take a fresh oath under Article 194, read in conjunction with Schedule III of the Constitution.
Meanwhile, the Khyber Pakhtunkhwa (KP) government supported their petition since the transfer undermined the appointment procedure of judges in the superior judiciary under Article 175 as well as the concept of federalism, independence of judiciary, role of JCP in elevating judges, Schedule III of the Constitution that deals with the oath of judges and the autonomy of the high courts.
At the previous hearing, senior counsel Muneer A. Malik had articulated that the JCP meeting’s notice had been issued to convene a meeting on April 18, later rescheduled to April 17 for the appointment/confirmation of the IHC chief justice. Currently, Justice Dogar is the acting CJ. The AGP candidly informed CB that the JCP meeting was ante-dated for deliberating upon a single-item agenda on April 17, i.e., nominations of two more judges in CB.
When the court asked the AGP whether any date for the JCP meeting had been fixed for the appointment/confirmation of the IHC CJ, he categorically stated that no such meeting had been scheduled and the notice of the next meeting was issued for May 2 for the appointment/confirmation of Peshawar and Balochistan high courts CJs.
When asked to explain the procedure for calling the meeting, the AGP referred to Rule 9 and Rule 10 of the Judicial Commission of Pakistan Rules 2024, saying at least 15 days’ notice was required to be issued to all members of the commission for nominating the prospective candidates.
Muneer A. Malik argued that though the federation had filed the concise statement, the relevant record was not attached. But the AGP undertook to submit the entire record pertaining to the transfer of judges to the IHC through a concise statement, including the summary moved by the Ministry of Law to the prime minister for onward advice to the president for further action in terms of Article 200 of the Constitution.
IHCBA plea
Meanwhile, Advocate on Record (AoR) Anees Mohammad Shahzad told the CB about filing an application to withdraw the petition moved on behalf of the Islamabad High Court Bar Association (IHCBA), since the body was no longer an aggrieved party, especially after the filing of the petition by the high court judges themselves. The association also furnished its April 15 resolution in this regard to substantiate their decision. The court accepted the plea and allowed withdrawal of the petition.
Senior counsel Faisal Siddiqui, who was representing IHCBA, told the CB that he did not file the application for withdrawal, nor was the application moved on his instructions. Former IHCBA president Riasat Ali Azad also told the CB that he had filed the petition after getting approval from the managing committee of the bar.
The AGP also told the CB he had no instructions in this regard, but he might represent the JCP if asked to do so. At present, he said, he was representing the president and the federal government. He said he would also seek instructions from the registrar of the Supreme Court on whether he wanted to file a concise statement.
The CB also asked the advocates general of the provinces and the Islamabad Capital Territory to consult the registrars of their respective high courts and file concise statements before the next date of hearing, along with the seniority list maintained by the judges in their respective high courts. The CB will commence daily hearings from Tuesday.
Published in Dawn, April 18th, 2025
