SC’s Justice Mazhar says judge’s transfer is not fresh appointment

Justice Muhammad Ali Mazhar of the constitutional bench of the Supreme Court (SC) on Thursday said that a judge who had been transferred from one high court to another could not be said to have been newly appointed, reported 24NewsHD TV channel. 

During the hearing of petitions filed by five judges of the Islamabad High Court (IHC) against the transfer of judges to the IHC, Muneer A. Malik, counsel for the five judges, said that the seniority of judges was linked to the independence of the judiciary. “Under Article 175 (III), the executive and the judiciary have been separated from each other.”

A five-member bench, headed by Justice Muhammad Ali Mazhar, heard the petitions. 

Justice Mazhar asked, “Who would determine the seniority of a judge?”

Malik replied that it was the chief justice (CJ) who would determine the seniority. 

Justice Shahid Bilal Hassan remarked that in the past, three judges of the Lahore High Court (LHC) went on to become the chief justices of the IHC.

Justice Naeem Akhtar Afghan said that Lahore High Court judge Justice Sardar Aslam was elevated to the position of IHC.

The judges’ lawyer said that Justice Aslam was not transferred. “In fact, he had been appointed under Article 193,” he said, and added that the then president had used the word ‘appointment’, not transfer’, while notifying the appointment of Justice Aslam. 

He went on to say that there was a separate oath for a judge of each high court. “The transfer of a judge is deemed to be complete when he takes the oath of his office,” he said, adding, “When a judge is transferred from one high court to another, his office is changed. And according to the constitution, taking a fresh oath is necessary after the change in office.”   

Justice Mazhar said that the constitution was silent on whether the judge who had been transferred would take a fresh oath.

He was of the view that a transfer could not be deemed to be an appointment.  

Reporter: Amanat Gishkori