Imaan quits IHCBA positionin protest

Human rights lawyer Imaan Mazari has resigned from her position as the chairperson of the Islamabad High Court Bar Association's (IHCBA) committee on enforced disappearances.
In a letter addressed to the IHCBA president on Monday, Mazari stated that she made the decision in protest against the "condemnable and cowardly" decision of the bar to withdraw its petitions against the 26th amendment and the transfer of judges to the Islamabad High Court (IHC).
Expressing her disappointment and shock over the move, she said the decision compromised on the principled position taken by former IHCBA president Riasat Ali Azad.

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Express Tribune

9 hours ago

• Express Tribune

Justice Shah warns against extending CB tenure

Senior puisne judge of the Supreme Court Justice Syed Mansoor Ali Shah has cautioned that the extension of the Constitutional Bench (CB) without resolving the core legal challenge surrounding it could further undermine the top court's legitimacy and deepen the ongoing institutional crisis. "The Commission must wait till the constitutionality of the 26th Constitutional Amendment is decided by this Court before addressing matters that flow directly from it. Proceeding with extensions or re-appointments to a Constitutional Bench whose very legal foundation is under serious constitutional challenge further deepens the institutional crisis and weakens the Court's legitimacy," Justice Shah wrote in a two-page letter addressed to the Secretary of the Judicial Commission of Pakistan (JCP). A copy of the letter was also shared with all JCP members. However, the commission, by majority vote, disregarded Justice Shah's concerns and extended the tenure of the Constitutional Bench until November 30. Justice Shah noted that his office had verbally informed the Secretary JCP on June 12 that he would not be available in Pakistan to attend the meeting scheduled for June 19. "One would have reasonably expected that due to non-availability of one of its Members, the meeting would be deferred — particularly in keeping with past practice, where meetings have been deferred due to the unavailability of Members representing the Executive. Additionally, the meeting falls in the summer vacations announced by the Court. However, it appears that the meeting is continuing as scheduled — perhaps due to the judiciary's minority position in the Commission," the letter read. Justice Shah also requested that his written submissions be included in the official minutes of the JCP meeting, as he would be unable to attend, even virtually. He stressed that the commission must recognise how the ongoing delay in resolving the constitutionality of the 26th Amendment is eroding the Court's credibility and shaking public confidence in its impartiality. "It is both surprising and regrettable that rather than first addressing the legitimacy of the 26th Amendment, the Commission is rather insensitively prioritising the matter of judicial extensions — an act which, in substance, continues the disputed scheme introduced by that very amendment," the letter states. Justice Shah also warned against the growing influence of the Executive over the Commission. "It is imperative that the Court's image is not allowed to drift under the control or convenience of the Executive, which now appears to wield disproportionate influence over the affairs of the JCP." Pending adjudication of constitutional challenges, he proposed that all judges of the Supreme Court be nominated to the Constitutional Bench on an interim basis. "Any selective inclusion without a transparent process or identifiable criteria is patently discriminatory and damaging to institutional harmony." Justice Shah stressed the urgent need to develop formal criteria for the selection of judges to the Constitutional Bench before any further constitution or expansion takes place. "The absence of objective standards renders past nominations vulnerable to the charge of cherry-picking. This ad-hocism has already cast a long shadow on the legitimacy of the Constitutional Bench, and continued exclusion of senior judges without reason only worsens that perception." Addressing another item on the JCP meeting's agenda—related to the framing of rules under Article 175A(20) of the Constitution — Justice Shah asserted that no policy decision should be made until the 26th Amendment's constitutionality is settled, as it is currently being challenged in a series of petitions. In closing, he urged that his concerns be taken seriously. "The strength of the judiciary rests on its credibility, its internal coherence, and its fidelity to constitutional principle — not on expediency or executive preference. If the Commission is to retain its institutional legitimacy, it must lead with integrity, transparency, and collective wisdom."

Express Tribune

a day ago

• Express Tribune

Govt continues to score legal victories

After the 26th Constitutional Amendment, the government has got another major victory on Thursday as the constitutional bench endorsed the transfer of three judges from different high courts to the Islamabad High Court (IHC). The government's legal team must be jubilant that in view of the majority order, Justice Muhammad Sarfraz Dogar will continue as acting chief justice of the IHC, which is seen as crucial for the executive authority. The majority order will further frustrate the five IHC judges, who have been facing a tough time since writing a letter to the Supreme Judicial Council (SJC) regarding interference of agencies in the judicial functions, particularly on matters related to the PTI. A senior government functionary admits that the 26th amendment is the outcome of the six IHC judges' letter. Constitutional Bench (CB) was created through the 26th constitutional amendment. The real purpose of the amendment was to control the superior judiciary for the stability of the current political set-up. The present government doesn't want that courts should give any substantive relief to the incarcerated former prime minister as he is perceived as a threat to the system. Since November last year, legal circles were keenly watching the outcome of three cases that they considered would determine how far the judiciary could go to assert its independence. The constitutional bench did not disappoint the government as two of the cases had been decided in its favour. Firstly, trial of civilians in the military courts have been endorsed by the CB. Now, the government initiative regarding the transfer of three judges to the IHC has also been endorsed by the constitutional bench led by Justice Muhammad Ali Mazhar. It is interesting to note that the CB is not taking up petitions against the 26th constitutional amendment. If things stand the way as they are, it is no surprise that the government may get another victory in the reserved seats case soon. The chance that the July 12 order regarding the allocation of reserved seats will survive is very low. If the CB sets aside the decision, then the government will get a two-thirds majority in parliament. Moreover, in view of the "satisfactory performance", the Judicial Commission of Pakistan (JCP) by a majority vote extended the tenure of present CB judges until November 30. Unlike the past practice, CJP Yahya Afridi also voted in favour of giving an extension to the CB judges' tenure. Earlier, he was advocating that all SC judges should be included in the CB. The government has also been successful in appointing like-minded judges in the superior judiciary. Now, it would easily manage to appoint like-minded' chief justices in the high courts on July 1. Legal opinion Abdul Moiz Jaferii advocate says that the short order in the judges transfer case is disappointing. The majority has focused on the process of transfer itself being acceptable without dilating upon the particular transfer to Islamabad that was effected, how it was effected and what it aimed to achieve. Jaferii states that the order completely ignores the transfer of judges being expressly temporary in nature by the very language of the Constitution. It proceeds to validate such transfers on the premise of them being safeguarded by needing input from within the judiciary. "It then allows the president to redo the transfer and make clear the period of transfer and the seniority of the judges themselves, effectively opposing the very basis on which the transfers were validated: that this process was within the judiciary and insulated." He states that it is a bizzare reading of a plain constitutional premise. It ignores completely the scheme of appointment envisaged in Article 175A. And if one were to count the peculiar circumstances leading to this petition, completely ignored in the majority order but expressly considered by the minority, its reasoning becomes obvious. The minority opinion, other than the roundabout poetry at the end; is constitutionally sound", he adds. A former law officer says that the majority has taken a literal view. "It is premised on good faith and institution oriented bona fide exercise within the judiciary by three chief justices. If all three CJs act independently and in the interest of the institution, there should be no problem. Perhaps this was the reason Article 200 was inserted and it is working well in India. But if they don't act independently, this will become an instrument of coercion and silencing some judges, as in the present case. The majority has looked purely on law but not considered ground realities and facts." He says that as in many recent important constitutional cases, emotional advocacy and rhetoric continues instead of calm and cogent arguments. It is showing results every day more so when independent minded judges have already been sidelined and disarmed. At least the majority has left the question of temporary or permanent appointment. There is some contradiction as one the one hand the whole exercise is within the judiciary yet the matter has been sent to President alone. The whole exercise should be ordered to be conducted again but now the then CJ, IHC has gone. Who will give input on temporary or permanent status these judges, he adds. Hafiz Ahsaan Ahmad Khokhar advocate has stated that the majority decision is constitutionally valid, well-founded, and aligned with the spirit and intent of the constitution. He emphasised that the 3-2 majority judgment rightly affirms that under Article 200(1) of the Constitution, such transfers are permissible with the concurrence of the President, Chief Justices of the concerned high courts, and consent of the transferee judges. The court held that these conditions were conditionally met and found no mala fide on the part of the President. He noted that the president had issued a notification on February 1, 2024, under Article 200(1), transferring Justice Dogar, Justice Sumro, and Justice Muhammad Asif to the Islamabad High Court. Their inter-se seniority was later determined by then Chief Justice Aamer Farooq on 11th February 2025. However, this seniority order was challenged before the Supreme Court under Article 184(3). Explaining further, he said Article 194 makes no requirement for a second oath when a judge is transferred between High Courts, as the oath is to the Constitution itself — not to any specific court or jurisdiction. This is a principle recognized across other constitutional systems as well. Hafiz Ahsaan added that Article 200(1) does not specify whether a transfer must be temporary or permanent. Following the judgment, it now falls to the President to determine the nature of the transfers. If deemed temporary, no further seniority determination is needed; if permanent, the President must determine seniority based solely on the judges' original appointment dates. He stressed that under Article 200(3), the service terms of a judge cannot be adversely altered upon transfer, thereby preserving their rank, privileges, and entitlements. He further observed that the President, as directed by the Court, must independently determine seniority without relying on advice from the federal government. If the President declares the transfers permanent, and seniority is accordingly based on initial appointment, Justice Dogar may emerge as the senior-most among the three — qualifying him for consideration as Chief Justice of Islamabad High Court under Article 175A through the Judicial Commission of Pakistan. Contrasting with India's centralized seniority list, he noted that Pakistan's Constitution entrusts each High Court to determine seniority based on initial appointment — a practice also followed in the UK, US, Canada, and Australia. Hafiz Ahsaan while concluding said the 3-2 judgment is constitutionally sustainable and reinforces the legal structure under articles 200, 194, and 175A. The president's forthcoming decision will help shape a lasting constitutional precedent on judicial seniority and the limits of presidential authority in such matters.

Express Tribune

2 days ago

• Express Tribune

Supreme Court looks at seniority under Article 200

The Supreme Court on Wednesday adjourned until Thursday (today) the hearing of the Islamabad High Court (IHC) judge transfer case. A five-member constitutional bench of the apex court, headed by Justice Muhammad Ali Mazhar, presided over the hearing. During proceedings, the Advocate General for Punjab advanced his arguments, stating that West Pakistan was made a single unit in 1955 through the Pakistan Governor General Order. As a result, all high court-level courts were consolidated into one, and a seniority list was compiled based on the judges' appointment dates. However, Justice Naeem Akhtar Afghan remarked that the situation in the present case was different, as no judicial formation or dissolution had taken place in connection with the transfer of judges to the IHC. In response, the advocate general clarified that his point was only to illustrate that judges' prior service and transfers had historically been accepted. Justice Afghan observed that the central question in the case is whether the judge's transfer is to be considered permanent or temporary under Article 200 of the Constitution. He further inquired why a judge ranked 15th on the seniority list was transferred while 14 judges senior to him were overlooked.