Islamabad:
After the 26th constitutional amendment, the government got another major victory on Thursday when the constitutional bench approved the transfer of three judges from various high courts to Islamabad High Court (IHC).
The government’s legal team must be cheerful that in view of the majority order, justice Muhammad Sarfraz Dogar will continue as acting Chief Justice of IHC, which is seen as crucial to the executive authority.
The majority order will further frustrate the five IHC judges who have been exposed to a hard time ago writing a letter to the Supreme Court Council (SJC) regarding the interference of agencies in the judicial functions, especially on questions related to PTI.
A senior government’s salaried employee admits that the 26th change is the result of the six IHC judging letters. Constitution Bench (CB) was created through the 26th Constitutional amendment. The real purpose of the amendment was to control the overall judiciary for the stability of the current political setup.
The current government does not want courts to give any material relief to the imprisoned former prime minister as he is perceived as a threat to the system.
Since November last year, legal circles looked a lot on the result of three cases they considered would decide how far the judiciary could go to assert its independence.
The constitutional bench did not disappoint the government as two of the cases had been decided in favor of.
First, lawsuits against civilians in the military courts are approved by CB. Now the government initiative regarding the transfer of three judges to IHC has also approved by the constitutional bench led by Justice Muhammad Ali Mazhar.
It is interesting to note that CB does not record petitions against the 26th constitutional amendment.
If things stand as they are, it is not surprising that the government can soon get another victory in the case for reserved seats.
The chance that the July 12th order regarding the allocation of reserved seats will survive is very low. If CB sets the decision, the government will receive a two -third majority in parliament.
Given the “satisfactory performance”, the Legal Commission for Pakistan (JCP) with a majority vote The employment period for the current CB judges until November 30.
Unlike the practice of the past, CJP Yahya Afridi also voted to give an extension to the CB judges’ tenure. Previously, he spoke for all SC judges to be included in CB.
The government has also been successful in appointing like -minded judges in the overall judiciary. Now it would easily manage to appoint like -minded ‘chief courts in the high courts on July 1st.
Legal Opinion
Abdul Moiz Jaferii Advocate says the short order in the judicial transfer case is disappointing. The majority have focused on the fact that the transfer process itself is acceptable without being expanded on the special transfer to Islamabad that was implemented, how it was implemented and what it aimed to achieve.
Jaferii says the order completely ignores the transfer of judges who are explicitly temporary of the constitution itself. It continues to validate such transfers on the assumption that they are protected by needing input within the judiciary.
“It then allows the president to repeat the transfer and clarify the transfer period and the seniority of the judges themselves, which effectively opposes the basis on which the transfers were validated: that this process was within the court and isolated.”
He says it is a bizzare reading of an ordinary constitutional prerequisite. It completely ignores the scheme of appointment planned in Article 175a.
And if one was to count the peculiar circumstances that led to this petition, completely ignored in the majority order, but explicitly considered by the minority, its reasoning becomes obvious. The minority opinion, except for the roundabout poetry at the end; is constitutionally healthy, ”he adds.
A former attorney’s chief says the majority has made a literal view. “It is stated in good faith and institution -oriented Bona Fide exercise in the judiciary of three chief commissions. If all three CJs act independently and in the interest of the institution, there would be no problem. Perhaps this was the reason why Article 200 was deployed and it works well in India. The mulp has seen because of, facts.
He says that as in many recent important constitutional cases, emotional advocacy and rhetoric continue instead of calm and cogente arguments. It shows results every day more when independent judges have already been sidelined and disarmed. At least the majority have left the question of temporary or permanent appointment. There is some contradiction as one side that the entire exercise is within the judiciary, but the case has been sent to president alone. The whole exercise must be ordered to be completed again, but now the then CJ, IHC has gone. Who will provide input to temporary or permanent status these judges, he adds.
Hafiz Ahsaan Ahmad Khokhar Lawyer has stated that the majority decision is constitutionally valid, well -founded and adapted to the spirit and intention of the constitution.
He emphasized that the 3-2 majority decision rightly confirms that such transfers pursuant to Article 200 (2). The court found that these conditions were conditional on and found no Mala Fide on the part of the president.
He noted that the president had issued a notification on February 1, 2024 in accordance with Article 200 (2). 1, and transferred Justice Dogar, Justice Sumro and Justice Muhammad Asif to Islamabad High Court. Their inter-se-city was later determined by the then Chief Justice Aamer Farooq on February 11, 2025. However, this seniority order was contested by the Supreme Court in accordance with Article 184 (2). 3.
By explaining further, he said that Article 194 makes no claim for another oath when a judge is transferred between high courts, as oath is to the Constitution itself – no specific court or jurisdiction. This is also a principle recognized across other constitutional systems.
Hafiz Ahsaan added that Article 200 (2). 1, does not specify whether a transfer should be temporary or permanent. After the verdict, it now falls to the president to determine the nature of the transfers. If considered temporary, no further seniority provision is needed; If it is permanent, the president must determine seniority based solely on the judges’ original appointment dates.
He emphasized that in accordance with Article 200 (2). 3, the Terms of Service of a Judge cannot be negatively changed by transfer and thereby maintain their rank, privileges and rights.
He also noted that the president, as instructed by the court, must independently determine seniority without relying on the advice of the federal government. If the president declares the transfers permanently and seniority is accordingly based on the first appointment, Justice Dogar may arise as senior-most among the three-qualifying him for treatment as Chief Justice of Islamabad High Court under Article 175a through the Legal Commission in Pakistan.
Unlike India’s centralized seniority list, he noted that Pakistan’s constitution is transferring each Supreme Court to determine seniority based on initial appointment – a practice that also followed in Britain, the United States, Canada and Australia.
Hafiz Ahsaan, while concluding, said the 3-2 judgment is constitutionally sustainable and strengthens the legal structure under Articles 200, 194 and 175a. The president’s upcoming decision will help shape a permanent constitutional precedent for legal seniority and the boundaries of presidential authority in such issues.
