A petition filed in the Supreme Court on Thursday challenged the transfer of three Islamabad High Court judges, arguing that the move violated Article 2A of the Constitution and undermined judicial independence.

The appeal, filed by Lahore Bar Association President Irfan Hayat Bajwa through senior counsel Hamid Khan, stated that the transfers were carried out “without any publicly disclosed reasons, criteria, or demonstrable institutional necessity,” and alleged a “lack of transparency and absence of procedural safeguards.”

The Judicial Commission of Pakistan (JCP) approved on Tuesday the inter-provincial transfer of Justice Mohsin Akhtar Kayani to the Lahore High Court (LHC), Justice Babar Sattar to the Peshawar High Court (PHC), and Justice Saman Rafat Imtiaz to the Sindh High Court (SHC).

Read: ‘Outspoken’ trio of IHC judges transferred

“The meetings were convened by the secretary of the Judicial Commission of Pakistan in exercise of powers conferred by clause (22) of Article 175A of the Constitution, as the Chairman of the Commission, while giving reason therefor, declined to convene the meeting on the requisition by one third of the total members,” the Supreme Court said in a statement on Wednesday.

The statement said that the JCP deliberated on various transfer proposals, with the chief justices of the concerned high courts participating as members of the commission. The transfer decisions were made in accordance with the powers granted by the Constitution and the JCP’s procedural rules.

Additionally, proposals for the transfers of Justice Arbab Tahir and Justice Khadim Hussain Soomro were withdrawn by the members who had requisitioned them. The commission also decided, by a majority, that any vacancy created by a judge’s transfer would be filled through further transfers, rather than initial appointments.

The petition argued that judicial independence formed part of the Constitution’s “Basic Features” and claimed that any erosion of it “undermines the Constitution.”

It further questioned the legality of the transfers under Article 200, stating that the exercise of such power without defined criteria “renders the process arbitrary, opaque, and liable to be set aside.”

The plea also raised broader constitutional questions regarding the 27th Constitutional Amendment, arguing that changes affecting judicial jurisdiction were unconstitutional. It stated that the amendment “was a fraud on the electorate” and claimed Parliament lacked the mandate for such changes.

Among other arguments, the petition contended that the Supreme Court’s jurisdiction could not be transferred to a newly created Federal Constitutional Court, and questioned whether such a court could hear matters involving its own creation.

It further stated that “in the absence of any disclosed reasons, criteria, or demonstrable institutional necessity, the transfers of Judges… are unlawful.” The petition also argued that large-scale transfers without replacement had caused “institutional disruption” and could erode public confidence in the judiciary.

The petition requested the Supreme Court to declare the transfers unconstitutional and void, and sought directions on the interpretation of constitutional provisions governing judicial appointments and transfers.

Discord in IHC ranks

The development marks the first instance of the 27th Amendment, approved in November last year, being applied directly to the high courts. This follows amendments to Article 200, which remove the requirement of obtaining a judge’s consent before transfer and empower the relocation of high court judges between provinces on the recommendation of the Judicial Commission.

The three judges who were transferred were also among the six Islamabad High Court judges who had written a letter to the Supreme Judicial Council, seeking guidance on how to counter alleged interference by intelligence agencies in their affairs.

Earlier in February, when Justice Sardar Sarfraz Dogar was elevated to the position of Islamabad High Court chief justice from the Lahore High Court, the same three judges were among a group of five who refused to accept his elevation. They raised concerns regarding his seniority and questioned the legitimacy of his appointment.

Despite these reservations, Justice Dogar took oath as the Islamabad High Court chief justice just a week later. However, the five judges who had expressed their concerns did not attend the oath-taking ceremony, despite being formally invited.

Read More: President signs off on contentious transfer of 3 IHC judges

Babar Sattar, a prominent legal analyst known for his outspoken views, was part of Justice Qazi Faez Isa’s legal team that had challenged the presidential reference filed against him.

The IHC saw another hiccup last year when Justice Saman, who had been heading the Islamabad High Court’s harassment committee, was removed from her position after taking cognisance of a complaint filed by lawyer Imaan Mazari. The complaint followed a verbal altercation at court involving Islamabad High Court Chief Justice Sarfraz Dogar.

The complaint called for an inquiry under the Protection Against Harassment of Women at the Workplace Act to determine whether the chief justice had made gender-based or threatening remarks towards Mazari. Instead, Justice Saman was removed from her role, and Justice Inaam Ameen Minhas was appointed as the new head of the court’s harassment committee.

Justice Kayani, a judge noted for his rulings, particularly in matters of human rights, was elevated to the bench of the Islamabad High Court in December 2015. Over the years, he has presided over several significant cases, especially those concerning enforced disappearances.

In a landmark verdict issued in March this year, through a 28-page written judgement, Justice Kayani ruled that in the event of divorce, a husband is legally bound to return the entire dowry to the wife. He declared that such assets, along with bridal gifts, remain the exclusive property of the woman.

The judgment further held that women are entitled to an equal share in property acquired during marriage, which should be divided equally between spouses in cases of divorce or death.

Justice Kayani has also been a vocal critic of the 27th Amendment and had remarked on it during its passage last year.

During a hearing related to the Council of Islamic Ideology (CII), he observed that as the amendment was underway, the council could also have taken the opportunity to expand its authority. He quipped that the CII might have sent its proposals, suggesting its powers could have been enhanced as well.