Transfer of judges: CB concerned about attributing malice to state functionaries

ISLAMABAD: The Constitutional Bench, expressing concern over attributing malice to the state functionaries in transfer of judges, questioned whether the intelligence agencies influenced the functions of all the departments.

Justice Naeem Akhtar Afghan, while addressing Munir A Malik, who appeared on behalf of five judges of the Islamabad High Court (IHC), said the ground of malice taken by him regarding transfer of judges is on the basis of a letter written by the IHC judges, wherein, interference by the officials of intelligence agencies in judicial function has been highlighted.

He said the IHC judges in that letter did not mention the name of president, prime minister, law minister, law secretary or any judge, adding their grievance was against the officials of agencies.

Judges’ intra-court transfers: Justice Mazhar questions the role of CJP

A five-member SC Constitutional Bench, headed by Justice Muhammad Ali Mazhar, on Wednesday, heard the petitions of IHC five judges, Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan, and Karachi and Lahore Bar Associations.

Justice Shahid Bilal Hassan stated that after the IHC judges’ letter a Full Court meeting was held in Lahore High Court (LHC), and he was present in that meeting being judge of that High Court. He further said the LHC judges did not mention the interference by the intelligence agencies.

Justice Shahid also said that he has been a judge of the High Court for the last 13 years but not once any official of any agency approached him till date.

Munir in order to establish an element of malice in the transfer of judges cited the interviews of law minister and Senator Irfan Siddiqui given to a private TV channel. However, Justice Shahid told him that under the law the Court is not bound by any report of TV channels and print media.

During the proceeding, Munir again emphasised that the judges who were transferred from different High Courts to the IHC should take fresh oath. He said that Article 194 says; “a judge before entering upon the office shall take oath.”

Justice Mazhar remarked that there is difference between Article 194 and Article 200, as the former deals with entering upon the office of a judge, while latter relates to transfer of a judge, adding in the instant matter the transfer is from one High Court to another.

He observed that if a transferee judge takes another oath then his seniority in his parent High Court would be disturbed.

Justice Naeem questioned whether the posts of three judges, transferred to the IHC, became vacant in their relevant High Courts. Justice Mazhar commented that once another oath is taken then the early position will abolish.

Munir argued that according to Islamabad High Court Act, 2010, the IHC comprises chief justice and 12 judges.

He said the Judicial Commission of Pakistan on 25-01-25 appointed two judges in IHC, and left three seats vacant. Thereafter, the president took upon himself to fill the vacant seat transferring judges from provincial High Courts to the IHC.

Justice Muhammad Ali Mazhar then said that the Attorney General for Pakistan would have to explain why the three seats were left vacant.

Munir argued that the IHC six judges in their letter, written to the Supreme Judicial Council, had expressed reservation over meddling by the intelligence agencies in judicial affairs. After that letter the IHC judges were harassed and maligned on social and electronic media. Dual nationality of a judge suddenly became a topic in the media, while another judge’s law degree was questioned after three decades.

Justice Mazhar asked the counsel that the proceeding regarding the matter was initiated by the former chief justice and is still pending.

He said if those things are discussed then it would influence the case. He noted that the malice which is being attributed by the counsel is not against an individual, but the post of President.

Munir contended that the president had to apply his mind independently. Justice Mazhar responded that the power of the president under Article 200 of the constitution is subject to consent of the transferee judge, chief justice of relevant high courts, and the chief justice of Pakistan (CJP). He said the CJP before granting approval must have taken due care and was cognisant of all the development related to the transfer of judges. The case was adjourned until today (Thursday).

Copyright Business Recorder, 2025