“Transfer"—though not explicitly defined in the Constitution—is understood as an administrative act by the President to relocate a judge from one High Court to another. However, in recent times, this prerogative has been reduced to a mechanism of executive control, where loyalty eclipses performance, competence, and integrity, while dissent is condemned to irrelevance. Once a rare exception—previously confined to the appointment of the Chief Justice of the Islamabad High Court in its infancy—has now, in an unprecedented move, been invoked to relocate three High Court judges from Lahore, Balochistan, and Sindh to the Islamabad High Court, a shift poised to have far-reaching implications.
Article 200 of the Constitution of the Islamic Republic of Pakistan, 1973, mandates that the transfer of High Court judges between courts requires their consent, along with consultation with the Chief Justice of Pakistan (CJP) and the Chief Justices of both High Courts. While the constitutional requirements for such transfers have been satisfied, five judges of the Islamabad High Court opposed the move in a letter addressed to the CJP and the Chief Justices of the High Courts. However, the Constitution does not confer any role upon other judges of a High Court in the transfer process—except for those being transferred and the concerned Chief Justices—rendering the letter a mere act of protest and devoid of any constitutional weight or legal significance.
A strong and independent judiciary is the cornerstone of a stable democracy, ensuring the rule of law, safeguarding fundamental rights, and holding the state and its citizens accountable. Socrates said: 'Four things belong to a judge: to listen courteously, to answer wisely, to consider soberly, and to decide impartially.' Judicial independence, deeply entrenched in the Constitution, guarantees that no discussion can take place in Parliament regarding the conduct of any judge of the superior courts ‘in the discharge of his duties’ (Article 68). It further mandates the progressive separation of the Judiciary from the Executive (Article 175(3)) and stipulates that all executive and judicial authorities across Pakistan shall act in aid of the Supreme Court (Article 190).
Even amidst intense political polarisation, the judiciary has consistently acted as a steadfast deterrent to political victimisation, despite repeated claims of unfairness from the government—whether led by PML-N, PPP, or PTI—by upholding the right to dissent and safeguarding the fundamental rights of the opposition.
Such executive control, exercised through Parliament, JCP, and Constitutional Benches, where loyalty eclipses performance, competence, and integrity, and dissent is condemned to irrelevance, undermines Judicial Independence
All current judges, upon their appointment to a particular High Court and taking the oath under the Third Schedule of the Constitution for a specific province, had a legitimate expectation—before the precedent of transfer—that their seniority would be protected. Why aren't judges appointed as "Judges of the High Court" and then assigned or transferred to specific High Courts, allowing for a unified justice system, with a transparent transfer process?
While some may hastily dismiss the connection between the President's recent exercise of power under Article 200 and the 26th Amendment, given that the former predates the latter, a careful examination is essential. Recently, the current CJP, who approved these transfers, first, was appointed pursuant to the 26th Constitutional Amendment, which replaced the principle of appointing the most senior judge of the Supreme Court as Chief Justice. Under this amendment, the Special Parliamentary Committee (SPC), consisting of eight members from the National Assembly and four from the Senate, is granted the power to nominate the CJP from among the three most senior Supreme Court judges. Notably, the majority of members of the SPC by way of proportional representation are government members, which represents a stark contravention of Article 175(3) mandating separation of the judiciary from the executive. The CJP now is indirectly an executive appointee through its member parliaments.
The 26th Constitutional Amendment introduces Constitutional Benches for cases of original jurisdiction, typically those challenging the government in matters related to the enforcement of fundamental rights. The judges for these Constitutional Benches are nominated by the Judicial Commission of Pakistan (JCP), which has an overwhelming executive involvement. This includes government members from Parliament, the Attorney General, federal and provincial law ministers, the nominee of the Speaker of the National Assembly, and now even the Chief Justice, alongside the senior-most judge of the Constitutional Bench. Such a concentrated executive influence raises serious concerns about the independence of the judiciary. The JCP’s control over judicial appointments and the selection of Constitutional Benches allows the government to effectively cherry-pick judges for cases challenging its actions, thus undermining the impartiality that is essential for upholding the rule of law.
Interestingly, the remaining Chief Justices who have accorded approval are set to be elevated as Justices of the Supreme Court, who will be considered by the executive dominant - JCP. Purportedly, one such transferred judge, being the Senior Pusine Judge, would also be vying for the post of Chief Justice, among the top three contenders, disturbing the expected line of seniority of the judges of Islamabad High Court.
Although Article 200, governing judicial transfers, was not amended—despite speculation during the passage of the 26th Amendment—the amendment has nonetheless altered the career prospects of those exercising transfer authority. The CJP and the Chief Justices of the High Courts, who approve such transfers, are now subject to executive influence in their potential appointments to the Supreme Court and, ultimately, to the office of the CJP. This dynamic fosters a judicial hierarchy increasingly susceptible to executive preferences, jeopardising the independence that is fundamental to a fair and autonomous judiciary.
Article 141 of the Constitution establishes Parliament’s authority to enact laws across Pakistan, subject to the Constitution’s supremacy. Meanwhile, Articles 238 and 239 empower Parliament to amend the Constitution through a two-thirds majority. Furthermore, Article 239(5) stipulates that constitutional amendments cannot be challenged in court on any grounds, and sub-article (6) affirms the unfettered power of the Majlis-e-Shoora (Parliament) to amend any constitutional provision. These provisions underscore the Parliament’s ultimate authority to amend the Constitution, reinforcing parliamentary supremacy. However, the judiciary itself has previously trumped upon executive authority and parliamentary supremacy—dismissing two elected prime, wrongly convicting an ex-prime minister under dictatorial rule, and engaging in other forms of judicial overreach into legislative - parliamentary affairs and executive policy decisions.
The Roman poet Juvenal poignantly asked, Quis custodiet ipsos custodes?—who will guard the guards? This timeless question underscores the need for accountability within the judiciary itself. Parliament, by its constitutional supremacy, has the legitimate authority to enact checks and balances through constitutional amendments.
However, such executive control, exercised through Parliament, JCP, and Constitutional Benches, where loyalty eclipses performance, competence, and integrity, and dissent is condemned to irrelevance, undermines Judicial Independence. No doubt, the Parliament is supreme in enacting laws and amending the Constitution. However, when in opposition, the same mechanisms may be leveraged by the succeeding government, leading to a derailing of the judiciary and the establishment of a judicial system controlled by the government. This would have far-reaching consequences for fundamental rights, disrupting democracy and consolidating the government's overhanded control, while stifling the dissent that is essential to a free and functioning democratic society.