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Express Tribune
19 hours ago
- Politics
- 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
- Politics
- 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.
Business Recorder
7 days ago
- Politics
- Business Recorder
SC highlights defects in Sindh Co-operative Societies Act
ISLAMABAD: The Supreme Court highlighted defects in Sindh Co-operative Societies Act, 2020, and called for correction/ amendment by the Sindh provincial legislatures for appropriate rectification. The Sindh Co-operative Societies Act, 2020, which by virtue of Section 119 of the Act, repealed the Cooperative Societies Act, 1925, enacted to consolidate and amend the law relating to cooperative societies in the Province of Sindh to facilitate the formation and working of co-operative societies for the promotion of thrift, self-help, and mutual aid among agriculturists and other persons with common economic needs, so as to bring about better living, better business, and better methods of production. The judgment of two-judge bench, comprising Justice Muhammad Ali Mazhar and Justice Aqeel Ahmed Abbasi, which heard civil petition against the Sindh High Court (SHC) regarding immovable property dispute, noted that instead of providing right of appeal to the High Court in the Act, which is a substantive right, it is provided in the Rules. Furthermore, the nature/ categories of disputes required to be resolved or decided by the Special Court for Cooperatives are also provided in the Rules rather than being defined in the Act with a specific provision to deal with civil disputes, just as offences are properly described in the Act itself without any ambiguity. It stated; Some corrections in the nomenclature of the Act are also required in Section 104 of the Act, which articulates: '(1) No Court other than the Special Court for Cooperative Societies established under section 121 shall try offences under this Chapter and disputes referred to in section 78'. The judgment further noted; 'The Act ends at Section 119 and there is no Section 121 in the Act. While Section 78 is germane to transfer of property which cannot be sold, and the execution of an order sought to be executed under Sections 81 and 82.' The judgment said perhaps due to misprinting or inadvertence, instead of Sections 73 and 117, the wrong taxonomies of sections of the Act are printed, which is causing confusion and is open to correction/ amendment by the provincial legislatures/ government of Sindh for appropriate rectification. Copyright Business Recorder, 2025
Express Tribune
12-06-2025
- Politics
- Express Tribune
SC rejects plea against mobile towers around KHI airport
The Supreme Court on Wednesday rejected an appeal against the installation of mobile towers around the airport in Karachi, saying that aviation and other authorities concerned said that those towers were built in accordance with international aviation standards. A three-member bench, comprising Justice Muhammad Ali Mazhar, Justice Syed Hassan Azhar Rizvi and Justice Aqeel Abbasi heard the appeal. According to the observations of the responsible parties, the bench said that there was no danger to the planes taking off from the airport. The petitioner Muhammad Aslam Khan Advocate had argued that some time ago, a Pakistan International Airlines (PIA) plane had crashed into a residential area, in which around 100 people died. The court said in remarks that the accident on the Flight PK-8303 was not due to the population. During the hearing, Justice Mazhar remarked that the house which was hit by the plane was not so high. He said that planes fly daily and the aviation authorities had no problem, so why someone else had the problem with it. Justice Abbasi remarked that entire population around the airport could not be evacuated. Justice Rizvi said in his remarks that if any accident happened in the future, the responsibility would lie with the authorities who were currently saying that the towers did not pose any problem for the planes.
Express Tribune
26-05-2025
- Politics
- Express Tribune
SC reviews landmark verdict amid absences, silence and restraint
The highest court in the land on Monday waded into uncharted waters as it began hearing review petitions against its July 12 judgement - a verdict that had handed Pakistan Tehreek-e-Insaf (PTI) reserved seats in the national and provincial legislatures - but without six of the original judges, including the judgement's author. The hearing broke new ground in more ways than one, marking several firsts in judicial history. The review petitions, filed by the ruling PML-N and PPP alongside the Election Commission of Pakistan (ECP), are being heard by a 13-member larger bench. Curiously, the majority of the new Supreme Court bench were not part of the original decision, and no explanation has been offered as to why the court's constitutional committee did not recommend including the six judges from the earlier ruling. For the first time since the 26th Constitutional Amendment was passed, the Supreme Court proceedings were broadcast live, a move hailed as a step toward transparency, though the absence of key judges cast a long shadow. Despite the high stakes, not a single judge offered observations in favour of the majority judgement under review. Even Justice Muhammad Ali Mazhar and Justice Hasan Azhar Rizvi - both signatories to the original ruling - remained unusually tight-lipped, adopting a tone of marked restraint. In contrast, two judges who had not been part of the original bench raised a fundamental question: if the PTI was not a party in the initial case, how could it receive relief? They wondered as to how reserved seats were given to PTI when they were not a party, neither before the ECP nor the Peshawar High Court (PHC). Justice Aminuddin Khan observed that it was an admitted fact that all PTI-backed returned candidates had joined the Sunni Ittehad Council, which had not contested the general elections. He pressed further, asking whether any PTI-backed returned candidate had approached any forum to declare himself as a PTI candidate. 'Should the SC shut its eyes?' The elephant in the courtroom, however, remained the role of the ECP during the controversial February 2024 polls, with most judges sidestepping the discussion on it. Though the majority judgment had held the ECP to account, only Justice Jamal Khan Mandokhail pointed to the electoral body's failings. Justice Mandokhail - part of the minority who believed PTI was entitled to reserved seats - said that the presiding officers and returning officers failed to perform their duties in accordance with the law and constitution during the February 2024 general election. He challenged the opposing counsel, Makhdoom Ali Khan, by asking: "Should the Supreme Court shut its eyes?" Commenting on the matter, lawyer Abdul Moiz Jaferii flagged what he saw as a glaring lapse in judicial due diligence. "What I found most amazing was how some of the judges who were not part of the original proceedings had clearly not read the judgment under review. You are seated to determine an error floating on the face of the record." "You are extraordinarily doing so without the author judge and many other judges senior to you who were part of the original proceedings. Surely you can read the judgment for yourself and not rely on the arguments of counsel to refresh the most basic principles of the case for you," he added. Observers also noted that the government's side appeared in a rush to tie up loose ends. Counsels for the PML-N, PPP and ECP all fell in line behind the arguments presented by Makhdoom Ali Khan, despite the original verdict's criticism of the ECP's conduct. Insiders suggest that Justice Aminuddin Khan's upcoming Hajj might be behind this urgency. There is speculation that the ruling coalition is keen to see the matter settled before his departure. On the other side of the aisle, PTI and its allied Sunni Ittehad Council (SIC) have engaged four senior counsels to defend the majority ruling. SIC's Faisal Siddiqi is slated to present his arguments today (Tuesday). Legal circles believe that the current impasse stems from the ECP's misreading of the Supreme Court's January 13 verdict, which declared PTI's intra-party polls illegal. Besides, the court under former chief justice Qazi Faez Isa also came under fire for dragging its feet on PTI's review petition – a delay that many say left the political field clouded in uncertainty. Even the majority judgment had flagged constitutional tensions at the heart of the matter. The majority verdict had quested how the matter of intra party elections - a matter of internal governance of a party - could trump the fundamental rights of citizens to vote and of political parties to effectively participate in and contest elections by obtaining a common symbol for their candidates, guaranteed under Articles 17(2) and 19 of the Constitution.
