The enactment of the 26th Constitutional Amendment Act, 2024, has precipitated one of the most contentious legal and constitutional crises in Pakistan’s recent history. While the amendment itself remains controversial, its aftermath particularly the transfer of High Court judges under the aegis of Article 200 of the Constitution has ignited intense debate across legal, political, and civil society circles.
The abrupt and selective transfer of Justice Sardar Muhammad Dogar from the Lahore High Court (LHC) to the Islamabad High Court (IHC), along with two other judges from the Sindh High Court (SHC) and Balochistan High Court (BHC), has raised profound questions about the integrity of judicial independence, the principle of seniority, and the constitutional limits on executive power. While Article 200 of the Constitution of Pakistan, 1973, permits the transfer of High Court judges, its misuse—either in spirit or in application—represents an erosion of constitutional values and a dangerous expansion of executive discretion.
Article 200 of the Constitution governs the transfer of judges from one High Court to another. The text explicitly outlines four mandatory conditions for a lawful transfer: (1) consent of the judge being transferred, (2) consultation with the Chief Justice of Pakistan (CJP), (3) consultation with the Chief Justices of both the concerned High Courts, and (4) a clear justification in the “public interest.” Thus, any transfer executed without satisfying these cumulative requirements would be unconstitutional, arbitrary, and liable to judicial scrutiny.
Another important fact is that Clause (4) of Article 200, which previously allowed for deemed retirement in cases where a judge refused a transfer, was abolished through the 18th Constitutional Amendment in 2010. This omission was a landmark development that fortified the consensual nature of judicial transfers and served as a bulwark against executive coercion. It is now constitutionally impermissible to penalise a judge for declining a transfer.
The constitutional provisions corresponding to Article 200 of the Constitution of the Islamic Republic of Pakistan, 1973, are found in the earlier constitutional frameworks of the country—namely, Article 172 of the Constitution of 1956, Article 99 of the Constitution of 1962, Article 202 of the Interim Constitution of 1972 and, finally, in the original Constitution of Pakistan 1973 (the provision was the same—here “original” means the Constitution without any amendment). While each was drafted in a different political and legal context, these articles are substantially similar in both language and legal effect. They collectively establish the procedure and conditions under which a judge of a High Court may be transferred from one High Court to another within the federation.
In the First Constitution (Amendment) Act of 1974, Clause (3) of Article 200 was added as: Clause (3) reads as: “If at any time it is necessary for any reason to increase temporarily the number of judges of the High Court, the Chief Justice of that High Court may require a judge of any other High Court to attend sittings of the former High Court for such period as may be necessary and while so attending the sittings of the High Court, the judge shall have the same power and jurisdiction as a judge of that High Court: Provided that a judge shall not be so required except with his consent and approval of the President and after consultation with the Chief Justice of Pakistan and the Chief Justice of the High Court of which he is a judge.”
The Executive branch retains various means to marginalise judges who exhibit independence or fail to align with its preferences
Subsequently, the Fifth Constitution (Amendment) Act of 1976 introduced a proviso to Clause (1), stipulating: “Provided that such consent or consultation with the Chief Justices of High Courts shall not be necessary if the transfer is for a period not exceeding one year at a time. Explanation: In this Article, the term ‘judge’ shall not include a ‘Chief Justice’.”
Thereafter, during General Zia’s military regime, the Constitution (Third Amendment) Order of 1985 (P.O. 24 of 1985) introduced a stringent Clause (4). Pursuant to this clause, any High Court judge refusing transfer would be deemed retired and entitled to pensionary benefits calculated on the entirety of their judicial and public service. Clause (4) explicitly states: “A judge of the High Court who does not accept transfer to another High Court under Clause (1) shall be deemed to have retired from office and, upon such retirement, shall be entitled to receive a pension calculated based on the length of his service as a judge and total service, if any, in the service of Pakistan.”
This onerous Clause (4) was subsequently repealed by the Eighteenth Constitution (Amendment) Act of 2010, which also removed the proviso to Clause (1), thereby restoring Article 200 to a more balanced form. However, recent transfers of judges from the Lahore High Court (LHC), Balochistan High Court (BHC), and Sindh High Court (SHC) to the Islamabad High Court (IHC) have engendered controversy. These transfers disrupted the established seniority of sitting judges and impeded the most senior judge’s elevation to Chief Justice of the IHC.
Such developments suggest that the Executive branch retains various means to marginalise judges who exhibit independence or fail to align with its preferences.
Under these provisions, the authority to effect such a transfer lies with the President of Pakistan. However, this power is not absolute. It is circumscribed by mandatory procedural safeguards intended to uphold judicial independence and prevent arbitrary executive interference in the judiciary. Chief among these safeguards is the requirement that the judge who is to be transferred must provide his consent to such a move. Furthermore, the President is constitutionally bound to consult with the Chief Justice of Pakistan, as well as with the Chief Justices of the High Courts involved, before making a final decision. This consultative process is integral to ensuring transparency, fairness, and the integrity of judicial appointments and transfers.
The term ‘consultation’ has long been the subject of interpretive judicial inquiry. In the Al-Jehad Trust case (PLD 1996 SC 324), the Supreme Court of Pakistan laid down a foundational principle: consultation must be effective, meaningful, and consensus-oriented. The Court emphasised that consultation must involve a substantive exchange of views, in good faith, and must include justification for the transfer itself. However, in the present context, the so-called consultation process has been opaque, superficial, and one-sided. There is no public record indicating whether the CJP or the Chief Justices of the LHC or IHC raised objections or whether the necessity of the transfers was ever rigorously debated. The constitutional mandate of genuine consultation appears to have been reduced to a procedural formality, devoid of substance or scrutiny.
While the Constitution mandates that no judge shall be transferred without his or her explicit consent, the context in which consent is obtained becomes critical. Consent given under duress, inducement, or political pressure is neither voluntary nor constitutionally valid. When transfers are used as instruments of reward or punishment, they corrode the foundational principle of judicial independence. In the current case, the consent of Justice Dogar must be examined in light of the benefits conferred upon him post-transfer—specifically, his elevation to the No. 1 position in the IHC seniority list, despite having held the 15th position in the LHC. This unilateral leap in hierarchy raises suspicions of preferential treatment and political engineering.
The most concerning development in this saga is the conduct of the Constitutional Bench of the Supreme Court, which inexplicably refused to decide on the question of seniority, instead referring the matter to the President
The most egregious consequence of these transfers lies in the manipulation of seniority, a principle that has long governed judicial appointments and promotions in Pakistan’s superior judiciary. The Doctrine of Seniority is not merely a matter of tradition; it is a mechanism to safeguard merit, deter nepotism, and prevent arbitrary appointments. By placing Justice Dogar at No. 1 in the IHC seniority list, the Executive has disrupted the natural order of succession, prejudicing the rights of both the senior judges of the LHC and those of the IHC. This subversion of judicial hierarchy is tantamount to institutional sabotage, effectively barring senior judges from becoming Chief Justice of the IHC, in violation of established norms and expectations.
Such manipulation also sets a dangerous precedent: executive authorities may now bypass merit and seniority through strategic transfers, effectively hand-picking individuals for elevation to Chief Justiceship or even the Supreme Court, particularly in the presence of the 26th Constitutional Amendment.
Another aspect is that the Constitution clearly stipulates that a judge may be transferred only in the public interest. However, in the present case, there has been no articulation of what public interest was served by transferring Justice Dogar and others. Questions that remain unanswered include:
- Were the judges at the IHC underperforming or overburdened?
- Were the LHC, BHC, or SHC courts operating with surplus judicial resources?
- Was there any demonstrable public benefit in placing Justice Dogar above existing IHC judges?
The Executive failed to provide any evidence in support of these considerations. Similarly, the Constitutional Bench of the Supreme Court failed to probe this critical requirement, thereby abdicating its constitutional duty.
Perhaps the most concerning development in this saga is the conduct of the Constitutional Bench of the Supreme Court, which inexplicably refused to decide on the question of seniority, instead referring the matter to the President. This move represents a dereliction of judicial responsibility and has allowed the Executive to intrude into a domain reserved for the judiciary. By defaulting on its constitutional role, the judiciary has ceded ground to the Executive, empowering it to manipulate judicial hierarchies at will. The President’s act of placing Justice Dogar at the top of the IHC seniority list without any legal or constitutional basis is a blatant usurpation of judicial authority and undermines the separation of powers enshrined in Pakistan’s constitutional order.
This act can only be described as a constitutional dacoity in broad daylight a seizure of institutional legitimacy, perpetrated through procedural camouflage and political manipulation.
Honourable Justices Naeem Akhtar Afghan and Shakeel Ahmad wrote strong dissenting opinions. They stated that the transfer was carried out too hastily and without proper consideration, and that it was not in the public interest.
They also warned that “gains made by breaking the Constitution will always harm the country’s long-term stability, legitimacy, and rule of law.” In the Sunny Ittehad Council case about reserved seats, the Constitutional Bench treated the earlier ruling (which gave relief under Article 187—to "complete the justice") as if it were rewriting the Constitution. But in the judge transfer case, another Constitutional Bench avoided its duty to rule on the seniority issue of judges. It left out important parts of the Constitution related to this matter.
This failure is a result of the 20th Amendment, which granted the Executive more control and allowed it to intervene in judicial matters. It seems the Executive and Legislature have yielded to influence, resulting in a kind of hybrid governance. Ironically, in 2010, the same political parties passed the 18th Amendment and the 2010 Act, which were meant to empower civilians and strengthen democratic rule.
In conclusion, the transfer of High Court judges, particularly in the aftermath of the notorious 26th Amendment, is not merely an administrative exercise. It represents a deepening crisis in Pakistan’s constitutional governance, where judicial independence is being subverted, seniority is manipulated, and the Executive is encroaching on judicial prerogatives with impunity. If such practices are allowed to continue unchecked, the very notion of a neutral, independent, and merit-based judiciary will be rendered meaningless.
The constitutional safeguards built into Article 200 including consultation, consent, and public interest must be respected in letter and spirit. The judiciary must reclaim its constitutional space, reassert the doctrine of separation of powers, and ensure that no judge is transferred, elevated, or demoted for political convenience. Only then can public confidence in the judiciary be restored, and only then can the Constitution serve as a living document that protects the rights and freedoms of all Pakistanis not merely the prerogatives of the powerful.
In this backdrop, Pakistan now needs another Constitutional Amendment one that removes anti-democratic parts of the Constitution. The sooner this is done, the sooner the political and constitutional crisis can be resolved.