A constitutional clash has intensified as five sitting judges of the Islamabad High Court (IHC) on Saturday formally contested the authority of the newly established Federal Constitutional Court (FCC) to hear their own appeal, petitioning the new forum to return their case to the Supreme Court.
The miscellaneous petition was lodged by Justices Mohsin Akhtar Kayani, Babar Sattar, Sardar Ejaz Ishaq Khan, Saman Rafat Imtiaz, and Tariq Mehmood Jahangiri. They are disputing the transfer of their intra-court appeal from the nation’s apex court to the FCC, a move facilitated by the recent 27th Constitutional Amendment.
The underlying legal battle concerns an intra-court appeal the five jurists had filed against a Supreme Court Constitutional Bench decision from June, which had validated the transfer of three judges from other high courts to the IHC.
Following the transfer of the case file under the new amendment, the appeal is now scheduled for a hearing before the FCC on November 24. However, the petitioners argue that the matter constitutionally falls within the Supreme Court’s jurisdiction and should be sent back for adjudication.
In their application, the judges contended that the 27th Amendment, which enabled the transfer of such cases, is itself a violation of the Constitution. They maintained that while Parliament holds the power to amend the Constitution, this authority does not extend to restructuring, abolishing, or undermining the judiciary, which is a fundamental pillar of the state.
The petitioners asserted that the transfer of their appeal to the FCC is legally unsound, emphasizing that the amendment enabling this move is currently under legal challenge for allegedly contravening the basic structure of the Constitution. They cited multiple Supreme Court judgments that reinforce the principles of judicial independence and the separation of powers.
This development follows an earlier attempt this week by four of the same justices – excluding Justice Jahangiri – to challenge the 27th Amendment directly before the Supreme Court under Article 184(3). The apex court did not entertain their petition, directing them instead to approach the FCC.
That draft petition had also questioned amendments to Article 200, which allow the transfer of high court judges without their consent. The judges argued that such changes could expose the judiciary to pressure, retaliation, and the manipulation of judicial composition. The FCC now faces the pivotal task of determining its own jurisdiction in this high-stakes legal dispute.