ISLAMABAD: Five judges of Islamabad High Court (IHC) on Friday wrote a letter to chief justice of Pakistan and the chief justices of three high courts including Islamabad, Punjab and Sindh with regard to reported transfer of a judge from the Lahore High Court (LHC) to the IHC.
Six judges of the IHC, Justice Mohsin Akhtar Kayani, Justice Tariq Mahmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, Justice Arbab Muhammad Tahir and Justice Saman Raffat Imtiaz, on March 25 had also written a letter to the Supreme Judicial Council (SJC) against the alleged “interference” and “intimidation” by the “operatives of intelligence agencies.”
The letter written to Chief Justice of Pakistan Yahya Afridi, Chief Justice of IHC Aamer Farooq, Chief Justice LHC Aalia Neelum and Chief Justice Sindh High Court (SHC) Shafi Siddiqui, though contains the names of Justice Miangul Hassan Aurangzeb and Justice Arbab Muhammad Tahir, does not have their signatures on it. The copy of the letter is sent to President Asif Ali Zardari.
Appointment of judges in SC: JCP reschedules meeting
They requested to all the Chief Justice of Pakistan and the Chief Justice of three high courts that in their consultation with the President, under Article 200 of the Constitution, it be categorically presented that such a permanent transfer of a judge to the IHC would be against the spirit of the Constitution, detrimental for the independence of judiciary, usurpation of established judicial norms, and also wholly unjustifiable.
“It would set a pernicious precedent whose ramifications are going to be extremely far-reaching,” said the judges.
The letter stated that in view of widely reported news by the media that a justice from the LHC is to be transferred to the IHC and this transferred judge would then be considered for appointment as the IHC chief justice. They added that there have also been reports that a proposal to transfer another judge from SHC to IHC may also be under consideration.
They pointed that the process of transfer from one High Court to another is governed by Article 200 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”), which provides, under sub-clause (1), that “/the President may transfer a Judge of a High Court from one High Court to another High Court” but only after consultation by the president with the Chief Justice of Pakistan and the Chief Justices of both the High Courts“.
Any transfer, such as the one being reported, can only happen after the president consults with the chief justice of Pakistan and the respective chief justices of both, the court from where the judge is being transferred, and the court to which the judge is being transferred.
They wrote, “This process of consultation, as enunciated by the Supreme Court, in the Al-Jehad case, necessarily entails that it be “effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play”.
In fact, the Al-Jehad case held, in the context of appointment of judges to the High Court and the Supreme Court that the relevant Chief Justices’ opinion has to be accepted “in the absence of very sound reasons to be recorded in writing by the President/ Executive”
They added, “We urge you not to advise the President to undertake any such transfer, for the following reasons.” They continued that under the existing scheme of the Constitution, there is no conception of a unified federal judicial service in Pakistan.
The judges further said, “The High Courts are independent and autonomous. The justices, who are elevated to a particular High Court, take oath, under Article 194 of the Constitution, with respect a particular province, or for the purposes of the Islamabad High Court, with respect to the Islamabad Capital Territory.
Since the passage of the Eighteenth Amendment to the Constitution in 2010, and during the times of political democratic governments in Pakistan, there has been no precedent of permanent appointments to the High Courts through the invocation of Article 200 of the Constitution.“
“The 26th Constitutional Amendment has not institutionalised the mechanism of transfer of judges of the High Court, from one to another, as was being proposed in the drafts of the amendment in circulation. For the purposes of transfers, under Article 200, the consent requirement of the judge and the consultation requirement with the Chief Justice of Pakistan and the Chief Justices of the relevant courts were suggested to be dispensed with.
Instead, such transfers were proposed to be undertaken on the recommendations of the Judicial Commission of Pakistan,“ maintained the judges.
They were of the view that the purpose of the said transfer from the LHC, as being reported, is that the transferred judge is to be considered for the position of the Chief Justice of the Islamabad High Court. This just cannot be under the Constitution.
The transferred judge would need to take a fresh oath under Article 194 of the Constitution, for serving in a new High Court. Correspondingly, his seniority would be determined from the date of the oath he takes for the purposes of serving at the IHC.
It has already been held by the Supreme Court, that the seniority is determined from the date oath is taken for such High Court, at which the judge is to serve.
Again, in passing the Twenty-Sixth Amendment, the legislature could have accepted the proposed Article 200(IA) which provided that “the seniority of a Judge of a High Court transferred shall be reckoned from the date of his initial appointment as a Judge of a High Court”. The legislature, however, did not.
Copyright Business Recorder, 2025
Comments