ISLAMABAD: The Lahore Bar Association (LBA) challenged the transfer of High Court judges to the Islamabad High Court (IHC), calling it “unconstitutional and unlawful”.
The LBA, on Friday, filed the petition through Hamid Khan under Article 184(3) of the Constitution, and prayed to declare that the President does not have unfettered and unbridled discretion to transfer judges from one High Court to another, under Article 200(1) of the Constitution, without a manifest public interest.
The petition raises vital questions as to the interference into the functioning of the IHC, through the invocation of powers, under clause (1) of Article 200 of the Constitution that has never been used in this manner before in the history of Pakistan.
The transfers from the other High Courts, if construed to be permanent, bypassing the requirement of taking a fresh oath mandated by law, and upending the inter-se seniority of the IHC, also defeat the very conception of federalism.
The catapulting of a judge at 15th seniority at the Lahore High Court (LHC) to an Acting Chief Justice of the IHC, raises important questions of how the transfer power, under clause (1) of Article 200, may have been used as a way to punish and side-line the already serving judges at the IHC.
It also raises questions as to the steps hastily taken to disempower the already serving judges of the IHC, wresting the administrative control out of their hands, and bestowing it on the newly transferred judges, with no administrative experience in their own relevant High Courts. This speaks of the arbitrary exercise of power. In doing all of this, the Constitution, its under-girding principles, judicial norms and conventions, have all been disregarded.
If the judiciary is not allowed to function independently, then even under democratic dispensations, once a government is elected for five years, there would be no mechanism available for accountability of the legislature and executive during this period. There cannot be a free pass, even for an elected government, to do as it wills, by virtue of the fact that it got elected. Elections alone are not an adequate safeguard for the people.
Under the Constitution, only the senior judges at a High Court can be considered for appointment as the Chief Justice of that High Court. Similarly, for appointment against vacancies in the Supreme Court, seniority again prominently features. Under Explanation II of Rule 9 of the Judicial Commission of Pakistan (Appointment of Judges) Rules, 2024 (2024 Commission Rules“), it has been provided that “[n]ominations for the appointment of a Judge to the Supreme Court shall be made from among the five most senior Judges of the High Court concerned”.
It is an established convention at the IHC that the administrative matters at the High Court are dealt with by the judges who have been confirmed as permanent judges and have relative experience, having served at the court. But taking the administrative powers from the hands of the experienced judges at the High Court, and bestowing them on Additional Justices and transferred judges, right after the transfers took place, breaks with the established norm.
Facially, such a move is also bereft of any reasonable justification. It is also inimical to the interests of Additional Judges, who have recently been inducted into the court, and will be up for confirmation within the year on the basis of their judicial performance.
To place the burden of administrative and executive work on such newly inducted additional judges, who are entirely unfamiliar with administrative work and personnel of the IHC and the subordinate courts at Islamabad, as opposed to mentoring them and allowing them space to focus on their judicial work, defies convention and reason.
Copyright Business Recorder, 2025
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