In a landmark ruling, the Supreme Court on Thursday declared that the transfer of High Court judges is not unconstitutional, dismissing constitutional petitions filed by Islamabad High Court judges and others.
The court also ruled that Justice Sarfaraz Dogar can continue to work as IHC’s acting chief justice.
The court, however, remanded the issue of judges’ seniority to the President of Pakistan for further consideration.
The verdict was announced by Justice Mohammed Ali Mazhar, who was heading the five-member constitutional bench hearing petitions filed by five IHC judges, the Karachi Bar Association (KBA) and the IHC Bar Association, and others.
The case revolved around a constitutional challenge to the transfer and posting of judges between high courts.
During the hearing of the case, the bench considered in detail the legal aspects of the seniority, appointment and transfer of judges.
The five-member constitutional bench, headed by Justice Mohammad Ali Mazhar, delivered a split 3-2 verdict.
Justices Mazhar, Shahid Bilal, and Salahuddin Panhwar formed the majority, rejecting the petitions filed by five Islamabad High Court judges.
The ruling said that the notification of transfer of judges is not being declared null and void, the president should resolve the issue of seniority as soon as possible, and until the president resolves the seniority, acting Chief Justice Sarfaraz Dogar will continue to handle the affairs.
These petitions were filed under Article 184(3) of the Constitution, following a February 1, 2024, notification from the Ministry of Law and Justice announcing the transfer of Justices Sarfaraz Dogar, Khadim Hussain Soomro, and Mohammed Asif from their respective high courts to the Islamabad High Court.
The move triggered a legal battle over seniority rankings and the limits of presidential authority under Article 200(1).
The petitioners — Justices Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Ejaz Ishaq Khan, and Saman Rafat Imtiaz — argued under Article 184(3) of the constitution that the president does not have unlimited powers to transfer judges under Article 200(1), and a judge of one high court cannot be transferred to another high court without public interest.
The 49-page constitutional petition, filed by senior lawyers Muneer A. Malik and Barrister Salahuddin, urged the Supreme Court to provide constitutional clarity to safeguard judicial independence and judges seniority.
During proceedings, the bench examined key legal aspects of judicial appointment, transfer, and seniority.
Previously, former chief justice of the Islamabad High Court Aamer Farooq had revised the seniority list of judges based on a verdict by the Indian Supreme Court which treated transfers and appointments as separate legal categories.
The petitioners contended that the change in their seniority undermined their judicial future, which not only affects their fundamental rights but also raises questions about the internal autonomy of the judiciary.