ISLAMABAD: Four former presidents of the Islamabad High Court Bar Association (IHCBA) on Thursday came in support of five judges of the Islamabad High Court (IHC) whose seniority dispute is under adjudication before the Constitutional Bench of the Supreme Court.
A joint petition has been moved by senior counsel Faisal Siddiqi on behalf of Riasat Ali Azad, Muhammad Shoaib Shaheen, Muhammad Arif Chaudhry and Zahid Mahmood seeking a declaration that the President of Pakistan does not have unfettered and unbridled discretion to transfer judges from one high court to another under Article 200(1) of the Constitution without a manifest public interest and in a manner that hampers the principles of independence of judiciary and separation of powers.
Headed by Justice Muhammad Ali Mazhar, a five-judge CB will resume on April 29 the hearing on a set of petitions against inter-se seniority of five IHC judges.
Five sitting judges of the IHC — Justices Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan and Saman Rafat Imtiaz — moved a joint petition before the Supreme Court 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.
File joint petition seeking declaration that president does not have unbridled discretion to transfer judges
Interestingly, the fresh petition by four former IHCBA presidents has been filed before the apex court after the Constitutional Bench allowed withdrawal of a similar petition by Riasat Ali Azad on the basis of a resolution adopted by the present cabinet of the IHCBA.
The fresh petition asked the Supreme Court to declare that the president’s exercise of powers under Article 200(1) should be read alongside Article 175A of the Constitution without subsuming the powers of the Judicial Commission of Pakistan (JCP) to appoint judges to a particular high court.
Moreover, the constitutional bench should also declare that the transfer notification of three transferred judges was unconstitutional and illegal for not being able to disclose any public interest and, therefore, liable to be set aside.
Or in the alternative, the petition pleaded that the constitutional bench should declare that the three transferred judges cannot be considered judges of the IHC until they take oath as justices of the high court pursuant to Article 194, read together with the Third Schedule of the Constitution.
The court should also declare in line with the settled law pronounced by the Supreme Court in the case of Aslam Awan and Farrukh Irfan, the inter-se seniority of the three transferred judges will be determined from the date they take oath as justices of the IHC and will consequently be lower in the seniority list to the five judges of the high court.
The petition also pleaded that the court should declare that the decision on the Feb 8, 2025, representation issued by the then chief justice of the IHC was illegal, unconstitutional and in violation of the settled law pronounced by this court and consequently the decision on the representation and Feb 3, 2025, seniority list should be set aside.
The petition also contended that the Feb 12, 2025, notification of appointing Acting Chief Justice (ACJ) Sardar Muhammad Sarfraz Dogar issued by the President was contrary to the law as the respondent could not have been considered a judge of the IHC and consequently be set aside.
Meanwhile in a separate development Mashal Azam, a practis ing lawyer and former Special Assistant to the Chief Minister of Khyber Pakhtunkhwa, also filed a petition before the Supreme Court regarding denial of access to her clients, PTI founder Imran Khan and Bushra Bibi, during jail trials at the Adiala Jail, Rawalpindi.
The petitioner said that jail authorities (respondents) repeatedly obstructed her from attending court proceedings and meeting her clients inside the jail, despite a clear IHC order of Sept 6, 2024, directing unrestricted access for lawyers with valid vakalatnamas (power of attorney).
The petition contended that the obstruction to meet the client to get instructions violates Article 10-A (right to a fair trial) and Article 204 (contempt of court) of the Constitution.
The petition accuses jail officials of deliberately disobeying the IHC’s orders, constituting contempt of the court and cites Section 3 of the Contempt of Court Ordinance, which defines contempt as wilful disregard of court directives.
Published in Dawn, April 25th, 2025
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