Significant progress was reported on Saturday in the ongoing litigation over the transfer of judges, as five judges of the Islamabad High Court (IHC) filed a miscellaneous petition before the Federal Constitutional Court (FCC) challenging the transfer of their intra-court appeal from the Supreme Court to the former.
The application was filed by IHC’s Justice Mohsin Akhtar Kayani, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, Justice Saman Rafat Imtiaz and Justice Tariq Mehmood Jahangiri.
The case pertains to the transfer of three judges from other high courts to the federal capital. In June, the SC’s Constitutional Bench had declared that their transfers were not unconstitutional. Subsequently, the five IHC judges had challenged the decision and filed an intra-court appeal.
However, the intra-court appeal in the case has now been fixed before the FCC, which was established under the 27th Amendment, on November 24.
In the miscellaneous petition, the IHC judges asked the FCC to return the intra-court appeal to the SC, arguing that the matter constitutionally falls within the jurisdiction of the apex court.
The petition stated that the appeal was shifted to the FCC under the 27th Constitutional Amendment, but contended that the amendment itself contradicted the Constitution.
In their application, the petitioners argued that the Constitution clearly outlined the legislature, executive, and judiciary as the three essential pillars of the state and delineated limits and powers for each.
The judges maintained that while Parliament holds the authority to amend the Constitution, such powers could not be exercised to abolish, restructure, or fundamentally weaken the judiciary, which forms an integral component of the constitutional framework.
They further asserted that several apex court judgments affirm the separation of powers and the protection of judicial independence, insisting that the appellate jurisdiction in such matters remained with the SC unless expressly provided otherwise without affecting the judiciary’s constitutional existence.
The petition stressed that transferring the appeal to the FCC on the basis of the 27th Amendment was legally flawed since the amendment itself was under challenge for being inconsistent with the Constitution’s basic structure.
With the new miscellaneous petition filed, the FCC is now expected to determine whether it can proceed with the appeal or whether the matter must be returned to the Supreme Court for adjudication.
Four of the same five IHC judges, excluding Justice Jahangiri, who wanted to challenge the recently introduced 27th Amendment, were turned away by the SC earlier this week and told to approach the FCC. The judges had drafted a petition invoking the original jurisdiction of the top court under Article 184(3), and sent a representation to the apex court’s registry branch.
According to the draft petition, the judges had also challenged the amendments to Article 200, which allowed the transfer of high court judges without their consent. They had argued that such provisions exposed judges to pressure, fear of retaliation, and manipulation of court composition.