• Oath-taking ceremony scheduled for Thursday postponed due to Turkish president’s visit
• Seniority of judges determined by CJs can’t be questioned by JCP, says AGP
• Plea against judges’ transfer to IHC lands before SC
ISLAMABAD: In a first, the Supreme Court has made elaborate arrangements for the oath-taking ceremony of seven judges, holding the event outdoors in the compound in front of the iconic building.
Chief Justice of Pakistan (CJP) Yahya Afridi is scheduled to administer the oath of office to seven judges on Friday morning. They were appointed as judges of the top court by the Judicial Commission of Pakistan (JCP) on Feb 10 amid a boycott by the PTI and two senior judges.
Usually, such ceremonies are held in the Ceremonial Hall, but for the first time, it is being organised outside the building, where former CJP Qazi Faez Isa had formally inaugurated the fundamental rights monument during his tenure.
The judges who will take the oath are Justice Muhammad Hashim Khan Kakar, Justice Muhammad Shafi Siddiqui, Justice Salahuddin Panhwar, Justice Shakeel Ahmad, Justice Aamer Farooq, Justice Ishtiaq Ibrahim, and Justice Miangul Hassan Aurangzeb (acting judge).
The CJP, along with judges of the Supreme Court and high courts, will sit on a platform situated underneath the giant golden emblem of the Supreme Court, while guests will be seated in the compound around the fountain, inside the court premises.
This arrangement has been made to accommodate a large number of guests, as it is likely that the family members of judges may also attend the ceremony.
Ceremony deferred
According to a senior official of the high court, the oath-taking ceremony was originally scheduled for 9am on Thursday. The judges of the Supreme Court were supposed to take oath before the CJP, while President Asif Ali Zardari was slated to administer the oath to IHC acting Chief Justice Sardar Mohammad Sarfraz Dogar.
The oath-taking ceremony was deferred as the notification for the appointment of SC judges and the acting chief justices of IHC, Peshawar High Court, Sindh High Court and Balochistan High Court was issued late at night, and movement had been restricted on Constitution Avenue because of the visit of the Turkish president.
The law ministry had also notified the acting chief justices of three high courts. As per the notifications, Justice Ejaz Swati has been appointed as acting CJ of the Balochistan High Court; Justice Junaid Ghaffar as acting CJ of the Sindh High Court; and Justice S.M. Attique Shah as acting CJ of the Peshawar High Court.
The president appointed Justice Dogar as the acting CJ by under Article 196. On Thursday, Justice Dogar was moved from Courtroom No 11 to Courtroom No 1.
Not a temporary transfer
Meanwhile, a source told Dawn that CJP Afridi, during the Feb 10 JCP meeting, expressed reservations over the seniority list of judges after the transfer to the IHC under Article 200(3). Attorney General for Pakistan (AGP) Mansoor Usman Awan, however, said the transfer was not temporary but permanent under Article 200(1).
He said the transfer was made in the public interest, not at the request of the judge but by the president after consulting the CJP and CJs of the high courts.
Justice Dogar was asked to give his consent in the public interest which he did, he said, adding that the judge could not be placed at the bottom of the hierarchy.
The AGP was quoted as saying that the seniority rules of civil servants were not applicable to the superior judiciary, as the judges were not civil servants.
According to the AGP, the Constitution provides an entirely separate scheme governing judges’ terms and conditions of service. He said Article 205 provided that their remunerations and other terms and conditions of service would be such as provided in the Fifth Schedule ,which empowered the president to do so.
Therefore, the principles regarding the transfer of civil servants could not be applied to the judges of the high courts and the Supreme Court, the AGP stated. He also said the inter-se seniority of the high court judges, as determined by their respective chief justices could not be called into question by the JCP.
Any such determination can only be assailed before the Supreme Court under Article 184(3), the AGP said, adding while referring to the 2019 case of Justice Farrukh Irfan Khan.
Referring to Articles 178 and 194 read with clause 3 of Article 255, the AGP said the oath was only administered before joining the office and it could not be given upon transfer. The Constitution never asked a transferred person under Article 200 to take an oath, said the AGP.
The AGP also drew a distinction between the words ‘appointment’ and ‘transfer’ under the Constitution and concluded that under Article 178 and Article 194 only that person was required to take oath who was recently appointed.
