5 IHC judges seek to preempt 'usurpation of judicial norms'
In an unusual development, five judges of the Islamabad High Court (IHC) have approached the chief justice of Pakistan and three high court chief justices, requesting them not to advise the president for a permanent transfer of a judge to the highest court in the federal capital.
The request was made through a letter penned by Justice Mohsin Akhtar Kayani, Justice Tariq Mehmood Jahangiri, Justice Sardar Ejaz Ishaq Khan, Justice Babar Sattar and Justice Saman Rafat Imtiaz that surfaced on Friday.
The five-page letter was addressed to CJP Yahya Afridi, IHC Chief Justice Aamer Farooq, Lahore High Court's Justice Aalia Neelum and Sindh High Court's Justice Muhammad Shafi Siddiqui.
"It is requested to the chief justices 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 Islamabad High Court would be against the spirit of the Constitution, detrimental [to] the independence of the 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," says the letter.
They also made it clear that if the purpose of transferring a judge from the LHC to the IHC is to consider him for the position of chief justice, then this is tantamount to "a fraud on the Constitution".
The five IHC judges have written the letter after media reports said that a judge is being transferred from the LHC to the IHC and he would be considered for the appointment as next chief justice of the court. Likewise, there are reports regarding the transfer of an SHC judge to the IHC as well.
The relationship between the establishment and the majority of the IHC judges are tense on account of their letter to the Supreme Judicial Council (SJC) seeking guidance on the alleged interference of agencies in the judicial functions.
The IHC judges had accused that they faced immense pressure in the Tyranny case. They narrated all the facts as how the judicial proceedings were manipulated in the high-profile cases.
However, Supreme Court led by former chief justice Qazi Faez Isa had failed to erect deterrence to halt interference of executive agencies in the judicial functions.
Following the letter episode, the coalition government brought the 26th Amendment to get executive's hold on the appointment as well as formation of benches. The executive has so far successful to appoint like-minded' judges and form constitutional benches.
After the possible elevation of the present IHC chief justice to the Supreme Court, there is a perception that the executive wants to appoint it's like-minded' chief justice in the IHC. There are reports that the government is interested in transferring three judges from different high courts to the IHC to shift the balance in its favour.
Lawyers have been criticising the executive for doing 'court packing' after 26th constitutional amendment.
Regarding to the possible transfer of judges to the IHC, former additional attorney general Waqar Rana says that any attempt to exercise the purported power of transfer by the president would be patently mala fide and also unconstitutional because the amended provision previously added to the Constitution during the Zia's martial law regime was abused and it was ultimately read down by the Supreme Court in Al-Jehad-1.
Rana, however, states that now it all depends upon the chief justice of Pakistan whether he allows this purported exercise of power by the president or stops it. "I trust he remembers his stance during the Lawyer's Movement where he along with his two other partners struggled for rule of law and supremacy of the Constitution and Independence of the Judiciary. These offices are solemn trusts where Allah is witness to every commitment and promise made," he adds.
Chaudhry Faisal Hussain advocate, who represents Imran Khan in several cases, has said that the IHC judges are a ray of hope in these dark times. "The issues raised in the letter are voice of the people. The incumbent government is on a constant effort to control the judiciary and it wants judges to act like Patwaris (revenue staffers)," he adds.
Chaudhry Faisal also believe that lawyers of Islamabad will not accept any such appointment and they will resist against this regime.
The five IHC judges have mentioned seven reasons in their letter and urged the chief justices not to advise the president for any such transfer.
The letter states that under the existing scheme of the constitution, there is no conception of a unified federal judicial service in Pakistan.
"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 Constitution (Twenty-Sixth Amendment) Act, 2024, as passed by the legislature, 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. Proposals were made whereby, 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.
"Despite a major overhaul to the judicial framework under the 26th Amendment, the legislature did not allow for permanent transfers to become constitutionalised as envisaged in the proposal. Article 200 did not undergo any changes. The conception of each court being separate and autonomous, under the system of federalism, has remained intact."
"The purpose of the said transfer from the Lahore High Court, 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 Islamabad High Court: that the seniority is determined from the date oath is taken for such High Court, at which the judge is to serve.
The letter states that in passing the Twenty-Sixth Amendment, the legislature could have accepted the proposed Article 200(1A) which provided that "[t]he 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. Hence, a transferred judge, required to take a fresh oath, would be at the bottom-end of the seniority list, at the date of such transfer, despite his prior service at another High Court. The transferred judge, as a result, may find such a situation to be unfortunate, which, may, in turn, lead to friction, jeopardising the smooth functioning of the Court.
"If the reports have any credence that the purpose of transferring a judge from the Lahore High Court to the Islamabad High Court is to have the transferred judge considered for the position of chief justice, then this is a fraud on the Constitution. The appointment of the justices to the High Court is governed by Article 175A of the Constitution. The Judicial Commission of Pakistan (Appointment of Judges) Rules, 2024 ("2024 Appointment Rules"), newly promulgated under Article 175A(4) of the Constitution, in its Explanation III of Rule 9(1) provides that "[n]ominations for the appointment of the Chief Justice of a High Court shall be made from among the three most senior Judges of that High Court".
Once the justices have been duly appointed to a High Court under the constitution, the three senior-most justices of that High Court are to be
considered for the position of the Chief Justice. It defeats the purpose of the Constitution and the 2024 Appointment Rules, if a judge, otherwise lower down in seniority in another High Court, is then introduced as a transferred judge, to be then considered and appointed as the Chief Justice in the court to which he is transferred.
"In the instance that such transfers from one high court to another high court are allowed, on a permanent basis, particularly for taking the position of the Chief Justice, then this would be detrimental to the basic, foundational conception undergirding the Constitution, that of independence of the judiciary. This would provide an opportunity, to select a judge from one High Court and introduce that judge in another High Court, for the purposes of exercising control over that High Court, as the Chief Justice. A High Court, with its own inter-se seniority, would become amenable to control by a judge, otherwise alien to that Court. This would have widespread consequences particularly how the judiciary views its role under the Constitution, setting up perverse incentives of ingratiation for the judges.
"The invocation of Article 200 of the Constitution has to be in "public interest" and "not for an object alien to the said object". The presence of vacancies in the Islamabad High Court cannot be peddled as a reason for the transfer. Through the passage of the Islamabad High Court (Amendment) Act, 2024, the number of judges in the Islamabad High Court has been recently increased from ten to twelve. Two direct appointments thereafter followed, taking the total number of serving justices to ten. The transfer, as suggested by the reports, is from the Lahore High Court, where against the occupancy of sixty justices, there are only thirty-five justices serving a percentage of 58.33%.
Whereas, as of now, in the Islamabad High Court, there are already ten judges serving against an occupancy of twelve, which means that 83.33% of the available slots are occupied. Similarly, it cannot possibly be said that the reason for this transfer is the pendency of cases in the Islamabad High Court. In fact, if it were a question of pendency, then again, justices are required in the Lahore High Court, rather than the other way around.
"The Judicial Statistics from the 3rd Bi-Annual Report, published by the Law & Justice Commission of Pakistan, provides that as of 30th June, 2024, there were 197,875 cases pending in the Lahore High Court, compared to 16,993 cases in the Islamabad High Court. Put differently, the pending cases in the Islamabad High Court are only 8.59% of the cases pending in the Lahore High Court. In sum, there is no facially plausible public interest that would be served by undertaking the transfer.
"The appointment of a judge to a High Court is a prerogative of the Commission, under the Constitution. If there are vacant seats at the High Court, for which eligible candidates are to be considered by a collegiate body, that function of filling in the seats cannot be taken over by invoking Article 200 of the Constitution. This would, in fact, tantamount to usurping the role of the Commission. Recently, in fact, the Commission had the opportunity to fill the four vacant seats at the Islamabad High Court. It chose to fill in two instead, and that too, after much deliberation over a large number of candidates. filling in other seats by invoking Article 200 of constitution would be nothing but short circuiting the constitutionally provided mechanism of appointing judges," says the letter.
Hafiz Ehsaan Ahmad advocate says that Article 200 provides a detailed description of the entire procedure of moving a judge from one High Court to another. This article, he explained, gives the President of Pakistan the power to move a High Court judge from one High Court to another. However, the constitutional expert stated that no High Court judge can be moved from one High Court to another without first gaining his consent, after which the President must consult with the Chief Justice of Pakistan and the Chief Justices of both High Courts"
The legal expert went on to clarify that the Constitution necessitates significant consultation between the president, the Chief Justice of Pakistan, and the Chief Justices of both High Courts, following the prior consent of a judge. A judge's seniority, benefits, and privileges remain unaltered, and according to the constitutional expert if a Chief Justice vacancy occurs after the judge's transfer of that High Court, he can be appointed to the transferee High Court as a Chief Justice. No High Court judge may be moved to another High Court without his assent.
He further stated that there are certain precedents available for such transfers under article 200 of the Constitution and earlier Justice Sardar Mohammad Aslam was transferred from the Lahore High Court (LHC) to the Islamabad High Court in February 2008 and he became the Chief Justice, Justice M. Bilal Khan was transferred from the Lahore High Court to the Islamabad High Court as its Chief Justice In 2009 and Justice Iqbal Hameedur Rehman was transferred after the re-establishment of the Islamabad High Court under the 18th amendment and was appointed as the Chief Justice of the IHC under article 200 of the Constitution.
He also highlighted that while a Chief Justice of a High Court may propose or suggest a judge's transfer due to administrative reasons under Article 200 of the Constitution, but the actual transfer process is constitutionally mandated to be handled only by the President of Pakistan in consultation with the Chief Justice of Pakistan and of the other High Court Chief Justice , therefore, the Chief Justice of a High Court alone cannot formally request or execute the transfer of a judge to another High Court under the Constitution of Pakistan.
Hafiz Ehsaan Ahmad eventually came to the conclusion that even though the judges of the ISD High Court are currently writing to the Chief Justice of Pakistan and other Chief Justices of the High Court to express their legal concerns, the process will not be legally halted if all of the above constitutional office holders listed in Article 200 of the Constitution agree and decide, after thorough consultation, to transfer a judge from another High Court to the Islamabad High Court".