ISLAMABAD: PTI founder and former Prime Minister Imran Khan on Friday filed an intra-court appeal (ICA) in the Supreme Court, challenging a Constitutional Bench (CB) verdict that upheld the transfer of three judges to the Islamabad High Court (IHC). Khan argued that the decision undermined judicial independence and bypassed the constitutionally prescribed process for judicial appointments.
The CB, in a narrow 3-2 majority ruling, had held that transferring judges from other high courts to the IHC was consistent with constitutional provisions.
Filed through senior advocate Idrees Ashraf, Khan’s petition took issue with the June 19 verdict, which he said treated permanently transferred judges unequally in terms of emoluments and privileges under Article 200. This disparity, the petition argued, created unconstitutional and discriminatory treatment among judges in similar positions.
This marks the eighth such petition filed before the apex court. Earlier appeals came from five IHC judges — Justices Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ijaz Ishaq Khan, and Saman Rafat Imtiaz — as well as the Lahore High Court Bar Association, Lahore Bar Association, Karachi Bar Association, PTI leader Shoaib Shaheen, and lawyers Raja Muqsid Nawaz Khan and Riasat Ali Azad.
Khan’s petition further contended that the CB ruling failed to correctly interpret the constitutional distinction between the president’s “functions” and “powers.” It argued that the president, as a ceremonial head, must act solely on the advice of the prime minister or cabinet and holds no independent authority in judicial transfers.
The petition criticized the CB’s reference to presidential “powers” in its judgment, calling it a mischaracterization that implied unconstitutional autonomy. Article 200, the petition noted, neither grants nor implies any discretion to the president in matters of judicial transfer.
It also challenged the CB’s decision to remand the issue for a determination on whether the judges’ transfers were “temporary” or “permanent,” stating that such a judicial question should not have been delegated to the president. Doing so, Khan argued, compromised judicial independence and violated the separation of powers.
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The petition went on to assert that Articles 200(1) and 200(2), which have coexisted since the 1956 Constitution, clearly indicated that judicial transfers were intended to be temporary. Clause (2), which maintains a transferred judge’s link to their parent high court, reinforces this temporariness, it said.
Declaring such transfers as “permanent,” the petition argued, would require inserting language not found in the Constitution — an act of judicial overreach that amounts to rewriting the constitutional text.
Unlike India’s Constitution, which explicitly provides for a vacancy upon a judge’s transfer under Article 217, Pakistan’s Constitution does not contain such a clause. Therefore, a judge retains both affiliation with the original high court and their seniority, the petition asserted.
It further maintained that judicial seniority is an internal administrative matter and should not fall under executive control. Allowing the president to determine seniority, it warned, would invite executive interference in the judiciary’s internal hierarchy.
Lastly, the petition argued that Article 175-A governs judicial appointments, while Article 200 addresses temporary transfers. Confusing the two, or using Article 200 to bypass the appointment process under Article 175-A, creates constitutional conflict and renders Article 175-A ineffective.