Islamabad High Court’s senior-most judge Justice Mohsin Akhtar Kayani and other judges have written to the Chief Justice of Pakistan on the possible attempt to bring a judge from another high court of the country for the post of Chief Justice Islamabad High Court.
According to the report, another alleged letter from Islamabad High Court judges has come to light, expressing concern over the news of bringing a judge from another high court to be made Chief Justice of Islamabad High Court.
Judicial sources say that Islamabad High Court’s senior-most judge Justice Mohsin Akhtar Kayani, Justice Tariq Muhammad Jahangiri, Justice Babar Sattar, Justice Sardar Ijaz Ishaq Khan and Justice Saman Rifat Imtiaz have written a letter to Chief Justice of Pakistan Justice Yahya Afridi and the Chief Justices of Islamabad High Court, Lahore High Court and Sindh High Court.
The letter states that there have been reports in the media of appointing judges from other high courts to the Islamabad High Court, bar associations have said that a judge is to be transferred from the Lahore High Court, after which the transferred judge will be considered as the Chief Justice of the Islamabad High Court.
According to the letter, there are also reports that a proposal to transfer a judge from the Sindh High Court to the Islamabad High Court is under consideration.
It said that giving reasons and meaningful consultation is also necessary to bring a judge from another high court, as the number of pending cases in the Lahore High Court is much more than that of the Islamabad High Court, up to 200,000.
The judges raised the question in their letter that how can the seniority of judges issued by the Islamabad High Court change?
One of the 3 senior judges should be made Chief Justice from the Islamabad High Court itself, and a judge from another high court should not be brought to make him Chief Justice.
The report said that the procedure for transferring judges from one High Court to another has also been discussed in the letter, according to which the process of transferring a judge from one High Court to another High Court is done under Article 200 of the Constitution, but this is possible after consultation with the President of the State, the Chief Justice of Pakistan and the judges of both the concerned High Courts.
The letter said that if a judge is transferred from the Lahore High Court to the Islamabad High Court, he cannot become the Chief Justice according to the Constitution. The oath of a judge is for the High Court in which he will start working. The transferred judge will have to take a new oath before starting work in the Islamabad High Court under Article 194 of the Constitution.
The seniority of the judge transferred to the Islamabad High Court will be determined according to this new oath.
The judges’ letter stated that the Supreme Court has decided that seniority will be determined from the day of taking oath in the relevant High Court. If a judge from the Lahore High Court is made the Chief Justice of the Islamabad High Court, it will be a fraud on the constitution.
The judges’ letter stated that according to the constitution, the Chief Justice of a High Court should be appointed from among the 3 senior judges of the same High Court. Transferring a judge of a lower rank in seniority from another High Court to another High Court and considering him for the post of Chief Justice is tantamount to defeating the purpose of the constitution.
It stated that there is no concept of Federal Judicial Service in the Constitution of Pakistan and all High Courts are independent and autonomous. The judges who are appointed to the High Court take oath only for the High Court of that particular province.
According to the judges’ letter, there is no precedent for the appointment of a permanent judge of a High Court under Article 200 of the Constitution during the periods of political democratic governments in Pakistan after the passage of the 18th Constitutional Amendment in 2010.
It should be noted that Islamabad High Court Chief Justice Aamir Farooq is expected to be made a judge of the Supreme Court, so the judicial bureaucracy is reportedly planning to bring a judge from the Lahore High Court to head the Islamabad High Court after the elevation of the current Chief Justice of the High Court.
Traditionally, a senior judge of the High Court is appointed as the Chief Justice, but earlier this year, the Judicial Commission of Pakistan (JCP) introduced new rules regarding the criteria of seniority in light of the 26th Amendment.
The Judicial Commission of Pakistan proposed that the Chief Justice of the High Court can be appointed from a panel of 5 senior-most judges. Just as Chief Justice of Pakistan Yahya Afridi, who was third in the seniority list, was appointed as Chief Justice by a special parliamentary committee instead of the senior-most Justices Mansoor Ali Shah and Muneeb Akhtar, similarly, the current Chief Justice of Lahore High Court Justice Alia Neelam was third in the seniority list but was selected by the Judicial Commission of Pakistan instead of senior Justices Shujaat Ali Khan and Ali Baqir Najafi. According to sources, Justice Sardar Muhammad Sarfraz Dogar of Lahore High Court is likely to be transferred to Islamabad High Court, he was appointed as a judge of Lahore High Court on June 8, 2015. After the transfer, Justice Sardar Muhammad Sarfraz Dogar will become the senior-most judge of Islamabad High Court after Chief Justice Islamabad High Court Amir Farooq is appointed to the Supreme Court.
