ISLAMABAD:
In his dissenting note in the Islamabad High Court (IHC) judges’ transfer case, Supreme Court Justice Shakeel Ahmad disagreed with the contention of the petitioner IHC judges that intelligence agencies have a role to play in matters relating to the appointment or transfer of judges.
In February this year, three judges from different high courts were transferred to the IHC, a move which was followed by changes in the seniority list of IHC judges.
Five IHC judges first filed representations against the transfer to the then Chief Justice Aamer Farooq. Following the rejection of the representations, the judges approached the SC against the transfer.
The judges claimed that the transfers were prompted by a written complaint they had filed with the then Chief Justice of Pakistan, Qazi Faez Isa, regarding alleged interference by intelligence agencies in the affairs of the IHC.
On June 19, a five-member constitutional panel of the SC declared by majority that the transfer of judges to the CHI was not unconstitutional.
Justice Naeem Akhtar Afghan and Justice Shakeel Ahmad dissented from the majority order. However, in the 23-page dissenting order, Justice Shakeel Ahmad disagreed with the assertion that the new judges were transferred to the IHC at the behest of intelligence agencies.
“This argument does not sit well with me, because intelligence agencies have no constitutional role in matters relating to the appointment or transfer of judges,” he said.
Justice Ahmad said the armed forces, under the oath prescribed by Article 244 read with the Third Schedule of the Constitution, are required to have true faith and allegiance to Pakistan and uphold the Constitution, which embodies the will of the people.
“Each member affirms that he will serve Pakistan honestly and faithfully in the army, navy or air force, in accordance with law.” The judge further said that this oath imposes a binding obligation to refrain from political involvement.
“Furthermore, Article 245(1) of the Constitution clearly states that the armed forces shall act under the direction of the Federal Government to defend Pakistan against external aggression or threat of war and, subject to law, to assist the civil power when called upon to do so.
“Any behavior contrary to these constitutional obligations would amount to a violation of their oath and a deviation from the role provided for them by the Constitution,” he added.
The judge further said that in the general interest of the country, in fidelity to the rule of law and in the unwavering defense of constitutionalism, it is the overriding obligation of all institutions to ensure that fleeting convenience does not become a precedent for permanent erosion.
Justice Ahmad, however, observed that the permanent transfer of a judge from one high court to another, especially when it disrupts the established seniority in the transferred court, amounts not only to personal harm to the judges of such a court but also to a structural threat to judicial independence.
He said Articles 2-A and 175 of the Constitution affirm this principle, while the oath required by Articles 178 and 195, read with the Third Schedule – administered to every Chief Justice and Judge of the Supreme Court and High Courts – binds them to discharge their duties “without fear or favour, affection or ill will”.
“This reinforces the legislature’s intent to achieve an impartial judiciary. Yet these words risk becoming hollow if the executive retains the power to reward or harm a judge through permanent transfer.”
Justice Shakeel Ahmad reiterated that the permanent transfer of a judge, especially when it changes the seniority structure of the transferred court, poses both a personal and institutional threat to judicial independence.
“Each High Court of Pakistan is constitutionally distinct and independent from the others, headed by its own Chief Justice and governed by its own seniority list. To confuse them, or to allow one to prevail over the other, is to blur these fundamental distinctions.
“It also reinforces that any transfer under Article 200 of the Constitution is not intended to be permanent, as permanence in this context would subvert both the structure and the spirit.”
“The Constitution reflects a deep legislative concern for judicial independence, with extensive debate devoted to guaranteeing it. For the judiciary to remain above reproach, its judges must be free from political pressure and of impeccable integrity.”
He further emphasized that, taken together, these events reveal a troubling pattern of rushed decision-making, selective disclosure and undue interference. The process, lacking transparency and fairness, seemed to have served an ulterior objective, which compromised the independence and internal balance of the IHC.
The judge said it is of utmost importance to remind ourselves that the concept of independence is not simply limited to freedom from executive interference. It is much more complete: it includes immunity against all forms of pressure, whether political, economic, social or ideological.
“This also includes freedom from bias that may arise from origin, social class or other affiliations that judges themselves may have.
“The independence of the judiciary constitutes the cornerstone of our constitutional order. It must be a well-structured, determined and responsive body, while being equipped to respond quickly to public grievances and deliver justice with courage, clarity and unfailing impartiality.
“An effective and impartial judiciary maintains a legal environment in which peace reigns, rights are protected and justice is free from bias based on caste, creed, color, culture or sex.
“Such an environment not only upholds the dignity of individuals and groups, but also lays the foundation for sustainable economic progress and social development, as recognized in the Zafar Ali Shah case.
“Judges must be equipped with resilient will and unwavering integrity, for on their shoulders rests the duty to uphold the rule of law, an unyielding doctrine whereby no one, no matter how exalted, is above the law.”
Justice Shakeel Ahmad noted that the Justice Department’s summary did not address the implications of seniority and the requirement of a new oath for transferred judges.
This omission, he said, suggests that complete and accurate information was not submitted to the Chief Justice of Pakistan, the Chief Justices of the respective high courts, or even the transferred judges themselves.
“Such a cover-up suggests a bad faith intention, possibly aimed at marginalizing the most senior judges of the IHC, influencing its institutional composition or manipulating the appointment process of its chief judge.
“This transfer directly impacted the seniority list and composition of the IHC Administrative Committee, both of which are essential to maintaining judicial integrity.
“In my opinion, the deliberate withholding of information relating to seniority and the conditions of taking the oath amounts to a violation of the rule of fairness and undermines the principles of transparency and judicial independence,” he added.
