ISLAMABAD (PEN) : The Supreme Court of Pakistan has emphasized that judicial approval is required at four distinct stages when transferring a judge between high courts, reaffirming the constitutional safeguards intended to uphold judicial independence.
The observation was made during the hearing of a constitutional petition concerning judge transfers. The five-member bench, headed by Justice Muhammad Ali Mazhar, examined complex issues involving Articles 175, 175A, and 200 of the Constitution, with a focus on seniority and the authority of the Judicial Commission.
Transfer Involves Multi-Tiered Judicial Approval
Justice Mazhar explained that the process of transferring a judge necessitates consent from four entities: the chief justice of the current high court, the chief justice of the receiving high court, the judge in question, and the Chief Justice of Pakistan. “If any one of them refuses, the transfer cannot proceed,” he noted. “This is not an executive decision — four judicial forums must approve it.”
Legal Counsel Challenges Executive Influence
Presenting his case, Advocate Faisal Siddiqi argued that judicial appointments and transfers are governed under Article 175 of the Constitution and primarily concern provincial high courts. He asserted that since the Islamabad High Court (IHC) is a federal institution, existing laws do not adequately cover such transfers.
Siddiqi maintained that any transfer to the IHC should not be treated as permanent and that returning judges should not be required to retake their oath. He criticized recent legal interpretations as undermining the Judicial Commission’s authority and bypassing due process.
“The current legal framework has been misused to keep the judiciary in the dark, especially on matters as critical as seniority,” Siddiqi told the bench.
Debate Over Seniority and Unified Criteria
Justice Shakeel Ahmed highlighted the recurring disputes over judges’ seniority and suggested that a unified national seniority list could help address ambiguity. Siddiqi concurred, adding that “seniority is built over decades, and altering it through sudden executive decisions amounts to authoritarianism.”
The arguments focused heavily on how such transfers could disrupt long-standing hierarchies and affect judicial impartiality and functioning.
Adjournment for Further Arguments
Attorney General Mansoor Usman Awan is expected to continue his arguments when the hearing resumes on Tuesday. The court adjourned proceedings after the completion of Siddiqi’s submissions.
The case is seen as a crucial test of the constitutional boundaries between the judiciary and executive, particularly in matters that affect the independence and internal governance of the courts.
