- Justices Afghan, Shakeel issue detailed dissent in 3-2 verdict, say transfers aimed at blocking Justice Kayani’s elevation as IHC CJ
- Terms move ‘not in public interest’ and ‘suffering from malice,’ pointing to anomalies in seniority, missing criteria for selection
- Warns decision has caused turbulence within IHC, hurting litigants
ISLAMABAD: The Supreme Court’s Justices Naeem Akhter Afghan and Shakeel Ahmed on Friday issued a detailed dissenting note on the transfer of three judges to the Islamabad High Court (IHC), declaring that the process was carried out in “unnecessary haste,” suffered from “malice in law and facts,” and dealt a “serious blow” to judicial independence.
In June, a five-member SC bench had ruled 3-2 in favour of the February transfers, holding that there was nothing unconstitutional about them. However, Justices Afghan and Shakeel dissented, earlier issuing a short order that the transfers violated Articles 2A, 4 and 25 of the Constitution by undermining due process, equality and the independence of the judiciary.
The detailed dissenting note, released on Friday, shed light on the alleged procedural flaws and motives behind the move. Justice Afghan pointed out that the transfer process for Lahore High Court’s Justice Muhammad Sarfraz Dogar and Sindh High Court’s Justice Khadim Hussain Soomro was initiated on January 28 and completed by February 1 — in just five days. Likewise, Balochistan High Court’s Justice Muhammad Asif was asked for consent by the law ministry on January 31, with his acceptance given the same day, raising questions over transparency.
“The process for transfer of three particular judges to IHC was initiated and completed by MoLJ (Ministry of Law and Justice) with unnecessary haste not in the public interest but, prima facie, with the motive to deprive the then Senior Puisne Judge of IHC (Justice Mohsin Akhtar Kayani) of his consideration/appointment as Chief Justice IHC,” the dissent noted.
It further alleged that the transfers were designed to “take over control of the affairs of IHC and District Judiciary of ICT from the sitting judges of IHC and to hand over the same to the transferee judges and additional judges under Justice Sarfraz Dogar as Senior Puisne Judge, Acting CJ IHC and later as CJ IHC.”
The note stressed that decisions taken with “an ulterior purpose” constitute malice in fact, while actions that are “blatantly illegal” amount to malice in law. Justice Afghan also underlined that the Ministry of Law and Justice had not even approached the president for authorisation in Justice Asif’s case, in contrast to Dogar and Soomro.
Highlighting anomalies, the dissent observed that Justice Dogar was 15th in seniority at the LHC, Justice Soomro was 20th at the SHC, and Justice Asif had only taken oath as an additional judge of the BHC on January 18 — just days before being transferred. No criteria for selection were placed on record.
“All the above transpire that the process for [the] transfer of three judges … is suffering from malice in facts as well as malice in law,” the note read. It added that the move had not only caused “turbulence” within the IHC bench but also “frustrated the legitimate expectancy” of sitting senior judges for elevation.
The dissent concluded that the transfers “seriously affected the smooth working and disposal of IHC, making the litigants suffer at large,” and cautioned that the controversial notification had undermined comity within the judiciary.
