ISLAMABAD: PTI founder Imran Khan on Friday filed an intra-court appeal (ICA) in the Supreme Court, arguing that Constitutional Bench’s verdict upholding the transfer of three judges to the Islamabad High Court eroded judicial independence and circumvented the constitutionally mandated appointment process.
In a three-two majority decision, the CB had ruled that the transfer of three judges from different high courts to the IHC was in accordance with the Constitution.
The petition, filed through senior counsel Idrees Ashraf on behalf of ex-PM Khan, contended that the June 19 judgement treated permanently transferred judges differently in terms of emoluments and privileges under Article 200, creating inequality among similarly placed judges — a move that is discriminatory and unconstitutional.
This is the eighth such appeal filed before the apex court. The earlier petitions were by five IHC judges — Justices Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ijaz Ishaq Khan and Saman Rafat Imtiaz — as well as by the Lahore High Court Bar Association, Lahore Bar Association, Karachi Bar Association, PTI leader Shoaib Shaheen, Raja Muqsid Nawaz Khan and Riasat Ali Azad.
In his petition, Mr Khan argued that the CB had failed to distinguish between the “functions” and “powers” of the president under the Constitution, as he performed functions only on the advice of the cabinet or the prime minister.
The reference to “powers” in the June 19 order, the petition argued, erroneously implied autonomy that was constitutionally impermissible. Article 200 neither granted nor implied any independent discretion to the president to initiate or finalise judicial transfers, the petition said, adding that as a ceremonial head, the president always acted on the advice of the executive.
Argues CB order eroded judicial independence, bypassed appointment process, violated equality among judges
The CB erred in remanding the matter to determine whether the transfer was “temporary” or “permanent”, describing it as a judicial question. Delegating it to the president, the petition added, undermined judicial autonomy and violated the principle of separation of powers.
Articles 200(1) and 200(2), which have existed in tandem since the 1956 Constitution, indicated that judicial transfers were temporary, the petition contended, adding that Clause (2), which stated that the transferee judge continued affiliation with the original high court, reinforced this temporariness.
Interpreting such transfers as “permanent” required inserting language not found in the constitutional text — a judicial overreach amounting to rewriting the Constitution, the petition stated.
Unlike India, where Article 217 explicitly declares a vacancy upon transfer, Pakistan’s Constitution does not create such a vacancy.
Therefore, a transferred judge retained affiliation with their parent high court and original seniority, the petition said.
Seniority, it argued, was an administrative matter within the judiciary, not an executive function. Allowing the president to determine seniority risked executive interference in the judicial hierarchy and autonomy, the petition contended.
Article 175-A governs judicial appointments and does not overlap with Article 200. Interpreting Article 200 to allow filling vacancies through transfers renders Article 175-A redundant and creates constitutional disharmony.
Moreover, treating permanently transferred judges differently in terms of emoluments and privileges under Article 200 results in inequality among similarly situated judges, which is discriminatory and unconstitutional.
Published in Dawn, July 19th, 2025
