Govt's 'court packing' leaves IHC in a tangle
In a move widely seen as "court packing", the federal government has successfully shuffled the deck in the Islamabad High Court (IHC) by transferring three judges from other high courts – a development considered crucial by the executive due to the court's role in hearing high-profile cases, especially those involving PTI and its leader, Imran Khan.
A notification issued by the law ministry announced the transfer of three judges from different high courts to the IHC.
"In exercise of the powers conferred under clause (1) of Article 200 of the Constitution of the Islamic Republic of Pakistan, the President of the Islamic Republic of Pakistan is pleased to transfer Justice Sardar Muhammad Sarfraz Dogar, Judge, Lahore High Court from Lahore High Court to Islamabad High Court, Justice Khadim Hussain Soomro, Judge, High Court of Sindh from High Court of Sindh to Islamabad High Court; and Justice Muhammad Asif, Judge, High Court of Balochistan to Islamabad High Court," the notification stated.
Justice Dogar ranks 15th in seniority at the Lahore High Court (LHC), while Justice Soomro is 28th in the Sindh High Court (SHC). Justice Muhammad Asif was recently appointed to the Balochistan High Court just last month.
Justice Dogar's appointment to the LHC came in June 2015, whereas IHC's senior puisne judge, Mohsin Akhtar Kayani, was inducted in December 2015.
The reshuffling has sparked a debate over the determination of judges' seniority in the IHC.
Five IHC judges have written to the chief justices, arguing that transferred judges must take a fresh oath under Article 194 of the Constitution to serve 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.
However, it is unlikely that the government and IHC Chief Justice Aamer Farooq will accept this interpretation.
Judiciary under pressure
Tensions between the establishment and a majority of IHC judges have been rising, particularly after judges wrote to the Supreme Judicial Council (SJC) seeking guidance on alleged interference by intelligence agencies in judicial matters.
The IHC judges have claimed they faced immense pressure during the Tyranny Case and detailed how judicial proceedings were manipulated in high-profile matters.
PTI chief Imran Khan has already filed a complaint of misconduct against IHC CJ Aamer Farooq, alleging that he had either repeatedly ignored requests by his fellow judges to act against blatant interference in the functioning of the court by state agencies, or had actively played a part in ensuring that such interference continued unabated.
Senior lawyer and PTI leader Chaudhry Fawad Hussain likened the situation to the 1937 "court-packing" plan of US President Franklin D. Roosevelt.
"Court Packing is a well-known concept. Packing the courts is the idea of adding justices to the Superior Court or lower courts to shift the balance in favour of the executive," he noted.
The lawyer warned that the practice was now in full swing in Pakistan where courts are literally made subservient to the executive by appointing favourable judges. "This has eroded the independence of the judiciary and has turned it into a PCO-era judiciary."
In addition to that, he pointed out that bringing judges on an ethnic basis was the "worst thing that can happen to Pakistan," adding that unfortunately, for limited political benefit, "the executive branch is playing with the country's solidarity."
Advocate lawyer Faisal Siddiqi warned that if the move was not reversed, "February 1st, 2025, will be remembered as the start of the complete destruction of the IHC".
"Only lawyers' mobilisation can save us now," he asserted.
Meanwhile, the Islamabad Bar Council (IBC) has unanimously condemned the government's decision, calling it an attack on judicial independence.
"This decision is an affront to the independence of the judiciary and undermines the rights and representation of the legal fraternity in Islamabad. The Islamabad Bar Council firmly opposes this decision and is determined to resist such unjustified transfers that disregard the fundamental principles of judicial autonomy and regional representation," the IBC stated.
In response, the council has called an Emergent General House Session today (Sunday) at 11:00 am, joined by the Islamabad High Court Bar Association and the Islamabad District Bar Association. A press conference will follow at 1:00 pm to outline their future course of action.
All eyes on JCP
All eyes are now on the Judicial Commission of Pakistan (JCP) and whether it will approve the elevation of Justice Aamer Farooq to the Supreme Court. If he is elevated, the question remains: who will be the next IHC chief justice?
Legal analyst Reema Omer, commenting on the ongoing judicial crisis, wrote on X (formerly Twitter) that the developments related to the judiciary since parliament enacted the 26th Amendment in October 2024 confirm fears this was no sincere 'reform' to make judges 'accountable'.
Instead, what we see is the most blatant attempt at judicial capture by an insecure regime struggling with legitimacy.
She pointed out how a special parliamentary committee secretly nominated Justice Yahya Afridi as CJP without public disclosure of the criteria.
Moreover, the parliament doubled the number of SC judges from 17 to 33 and increased IHC judges from 9 to 12. The Practice and Procedure Act was also amended to alter bench formation rules.
The constitutional bench appointed on November 5 had no clear criteria, and many urgent constitutional petitions remain unheard.
On December 13, the constitutional bench allowed military courts to announce verdicts against civilians, pending a final decision.
Advocate Hafiz Ehsaan Ahmad said that the next legal issue would be determining the seniority of the transferee judges in the IHC following the transfer of three judges from three different high courts to the IHC, after invoking the provisions of Article 200 of the Constitution.
According to him, the date of appointment as a high court judge often determines the seniority of that judge.
He maintained, however, that seniority among high court judges is determined by the principle that the date of appointment and oath of office are the primary criteria for seniority.
If several judges are appointed on the same day, seniority will be determined by the order in which their names appear in the appointment warrant issued by the president.
He said that since the judges had already taken an oath when first appointed to their respective high courts, Article 194 of the Constitution would not apply to the present transfer of justices.
He added that Article 205, read with the Constitution's Fifth Schedule, deals with the compensation and terms and conditions of Supreme Court and high court judges.
According to him, a judge's pay, privileges, and other terms of service cannot be changed to their detriment while they are serving and any changes to terms and conditionsincluding transfer policiesrequire a constitutional amendment or appropriate legislation.
He concluded, in view of the present constitutional situation, that since Justice Sarfraz Dogar had been transferred from the LHC to the IHC, his name will now be regarded as the most senior judge of the latter court due to his earlier appointment as a judge of the LHC, compared to other present judges of the IHC.
The legal expert also stated that if the incumbent IHC CJ is elevated to the SC at the next meeting of the JCP, Justice Dogar's name will not only be added to the panel of the three most senior judges for the appointment of the IHC CJ.
However, it will also be considered by the JCP, along with the other two most senior judges, for such a vacancy in accordance with the Constitution and under the new JCP rules promulgated in 2024.