Malik Waqar
Islamabad High Court (IHC) judge Babar Sattar has taken exception to initiation of judicial work by the three judges recently transferred to the capital’s high court from the provincial high courts of Sindh, Punjab and Balochistan without first taking the oath as IHC judges.
The judge has also objected to the new seniority list of the IHC justices as well as inclusion of the transferred judges in the IHC’s Administrative Committee and Departmental Promotion Committee, declaring all these moves to be in breach of the Constitution and law.
In a letter dated February 4 and addressed to IHC Chief Justice Aamer Farooq, Justice Sattar stated that under Article 193 of the Constitution the chief justice and every judge of a high court is to be appointed by the president in accordance with Article 175A of the Constitution.
“The other possible mode of appointment of a judge to a high court is by means of transfer in terms of Article 200 of the Constitution.”
He said under Article 194 of the Constitution, before entering office, the chief justice of a high court is bound to take an oath to be administered by the provincial governor while any other judge of a high court is bound to take an oath to be administered by the chief justice.
“Similarly, no judge can assume the office of a judge and begin to discharge the functions and duties of the office of a judge of a high court without swearing an oath as a judge of that particular high court vested with jurisdiction within the territory that falls in the province of such high court.”
Justice Sattar noted that after their transfer to the IHC in terms of Article 200 of the Constitution, the three judges did not take an oath in the form prescribed in Third Schedule of the Constitution as judges of the IHC “as the rest of us have done”.
“Consequently, they cannot be taken to have assumed the office of judges of the IHC and can therefore not be treated as judges of the IHC for purposes of discharge of judicial duties and/or administrative functions,” he added.
Justice Sattar reminded Justice Aamer Farooq that as the IHC chief justice he was under an obligation to administer oaths to the transferred judges, in terms of Article 194 of the Constitution, before they could assume office as judges of the IHC.
“Every passing day, when the transferred judges exercise judicial and/or administrative powers and functions of the office of a judge of the IHC, the illegality will continue to be perpetuated.
Objecting to the reconstitution of the IHC Administrative Committee, Justice Sattar, who has been on leave since Feb 3, noted that under the Islamabad Judicial Service Rules, the Administration Committee should comprise the IHC chief justice and two senior judges.
“Even if we were to not bear in mind the constitutional requirement of swearing an oath in terms Article 194 of the Constitution and conceive of a situation where the transferred judges have sworn oaths as judges of the IHC, Justice Soomro, who is presently at serial No 9 of the Seniority List issued by you [on February 3], would still not qualify as one of the two senior judges of IHC.
“As the composition of the Administration Committee has been prescribed by Rule 2(a) of the Islamabad Judicial Service Rules, the chief justice is vested with no discretion to constitute a committee in breach of such rule and appoint a junior judge to serve on the Administration Committee,” he added.
