Islamabad: Significant progress has been reported in the ongoing judicial dispute over the transfer of high court judges, as five Islamabad High Court (IHC) judges filed a miscellaneous petition before the Federal Constitutional Court (FCC) on Saturday. The judges are challenging the transfer of their intra-court appeal from the Supreme Court (SC) to the FCC, established under the controversial 27th Constitutional Amendment.
The petition was filed by Justice Mohsin Akhtar Kayani, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, Justice Saman Rafat Imtiaz, and Justice Tariq Mehmood Jahangiri. The matter pertains to the transfer of three judges from other high courts to Islamabad, which the SC’s Constitutional Bench had previously declared constitutionally valid in June. The IHC judges subsequently filed an intra-court appeal against the SC’s decision, but the case was shifted to the FCC, prompting the current petition.
In their application, the IHC judges requested that the FCC return the intra-court appeal to the Supreme Court, arguing that the matter constitutionally falls within the apex court’s jurisdiction. They contended that the transfer of the appeal under the 27th Amendment was legally flawed, noting that the amendment itself contradicted the Constitution’s basic structure. The judges emphasized that while Parliament has the authority to amend the Constitution, it cannot use that power to abolish, restructure, or weaken the judiciary, which forms an essential pillar of the state.
The petition highlights that the Constitution delineates the legislature, executive, and judiciary as the three essential branches of governance, with clearly defined powers. The judges cited several apex court rulings affirming the separation of powers and protection of judicial independence, maintaining that appellate jurisdiction in such matters should remain with the Supreme Court unless expressly modified in a constitutionally consistent manner.
The controversy also involves amendments to Article 200, which now allow high court judges to be transferred without their consent. The petitioners argued that this exposes judges to undue pressure, fear of retaliation, and manipulation of court composition, potentially undermining judicial autonomy. Earlier this week, four of the same five judges, excluding Justice Jahangiri, were directed by the Supreme Court to approach the FCC instead of invoking the SC’s original jurisdiction under Article 184(3).
The intra-court appeal is now scheduled to be heard before the FCC on November 24. Legal experts say the case could have far-reaching implications for the independence of Pakistan’s judiciary, the limits of parliamentary amendment powers, and the interpretation of the 27th Constitutional Amendment. The FCC will be required to determine whether it has jurisdiction over the matter or whether the appeal must be returned to the Supreme Court for adjudication.
This case is being closely watched by the legal fraternity and constitutional scholars, as it could set a precedent regarding the balance of powers between Parliament and the judiciary, judicial transfers, and the protection of judges constitutional rights.