Justice Shah interrogates the president’s role.
Although the Judicial Commission of Pakistan (JCP) narrowly endorsed the nomination of Justice Sardar Sarfraz Dogar as chief justice of the Islamabad High Court (IHC) by a single vote, Justice Syed Mansoor Ali Shah has expressed significant constitutional apprehensions regarding the president’s authority to ascertain judges’ seniority at the IHC.
Sources indicate that one day prior to the JCP meeting, Justice Shah communicated his concerns to the commission secretary regarding a presidential notification dated June 27 that established the seniority of IHC judges.
Justice Shah observed in the letter: “With appropriate respect, it seems this action was executed without the constitutionally required consultation with the Hon’ble Chief Justice of Pakistan and the two pertinent Chief Justices of the High Courts as stipulated in Article 200 of the Constitution.”
He asserted that, in his opinion, the obligation of consultation constituted a binding constitutional mandate and was not subject to executive discretion that could be easily disregarded.
He noted that the unilateral decision made without such consultation may lack legal validity.
He stated that although the Supreme Court instructed the president to determine the seniority of transferred judges, such compliance must remain within constitutional limits.
“The presidential action in question seems to have been executed with undue haste, raising concerns regarding the transparency and propriety of the process—issues that may warrant constitutional examination,” he warned.
Justice Shah emphasized that Article 200 of the Constitution anticipates the temporary transfer of judges, rather than their permanent relocation.
“Classifying such a transfer as permanent — and consequently establishing seniority based on that classification — may provoke significant constitutional concerns, especially when essential procedural safeguards seem to have been circumvented.”
Justice Shah urged institutional prudence, emphasizing that the issues presented in his letter required thorough contemplation prior to any subsequent actions.
“I wish to underscore that these are initial concerns, and I maintain complete respect for the judicial process and the Supreme Court of Pakistan’s ultimate authority to resolve these issues definitively,” he stated.
He implored the JCP to postpone its decision on the appointment of the IHC Chief Justice until the Supreme Court addresses the fundamental constitutional matters.
“Advancing at this juncture may jeopardize fundamental constitutional principles, such as the rule of law, separation of powers, and judicial independence,” he cautioned.
Justice Shah additionally requested that his letter be formally submitted to the commission and its contents documented in the minutes of the meeting.
He elucidated that the presidential notification dated June 27, 2025, mandated the letter, stating: “All remarks contained in the letter are provisional, presented without prejudice, and contingent upon the Supreme Court’s ultimate resolution of the pertinent constitutional matters presently under review.”
Simultaneously, it has been reported that Chief Justice of Pakistan Yahya Afridi actively sought to obtain backing for the nomination of Justice Mian Gul Hassan as Chief Justice of the IHC. Nonetheless, his endeavor proved futile.
Justice Aminuddin Khan, a fellow judicial member, notably voted in favor of Justice Dogar.
Former judge Shaukat Aziz Siddiqui unequivocally supported Justice Dogar’s nomination as Chief Justice of the Islamabad High Court.
Focus is now shifting to the scheduling of a hearing by a constitutional bench committee chaired by Justice Aminuddin Khan regarding the intra-court appeal submitted by five IHC judges. The appeal contests the prior approval of transferring three judges from various high courts to the Islamabad High Court.
The establishment of the bench is still pending as summer vacations commence. Justice Jamal Khan Mandokhail refrained from participating in the voting process.
The ultimate composition of the bench will be pivotal in ascertaining the outcome of the intra-court appeal submitted by the five IHC judges.
Justice Shah is presently abroad.
