Islamabad:
After the 26th constitutional amendment, the government won another major victory on Thursday while the Constitutional bench approved the transfer of three judges of different lessons to the High Court of Islamabad (CIH).
The government’s legal team must be jubilant that, with a view to the majority ordinance, judge Muhammad Sarfraz Dogar will continue as an acting chief of the IHC, which is considered crucial to the executive authority.
The majority ordinance will further frustrate the five judges of the CIH, who have been faced with a difficult period since the drafting of a letter to the Supreme Judicial Council (SJC) concerning the interference of agencies in judicial functions, in particular on questions related to the PTI.
A higher civil servant of the government admits that the 26th amendment is the outcome of the letter of the six CIH judges. The constitutional bench (CB) was created by the 26th constitutional amendment. The real objective of the amendment was to control the higher judiciary for the stability of the current political configuration.
The current government does not want the courts to grant substantial relief to the former Prime Minister imprisoned because it is perceived as a threat to the system.
Since November of last year, legal circles have been obviously observed the outcome of three cases which they considered would determine how far the judiciary could go to assert its independence.
The constitutional bench did not disappoint the government because two of the cases had been decided in its favor.
First, the trial of civil courts of military courts was approved by the CB. Now, the government initiative concerning the transfer of three judges to the IHC has also been approved by the constitutional bench led by judge Muhammad Ali Mazhar.
It is interesting to note that the CB does not take petitions against the 26th constitutional amendment.
If things are as they are, it is not surprising that the government will soon be able to obtain another victory in the case of the reserved seats.
The chance that the order of July 12 concerning the allocation of reserved seats to survive is very low. If the CB puts aside the decision, the government will obtain a majority of two thirds in the Parliament.
In addition, taking into account the “satisfactory performance”, the Pakistan Judicial Commission (JCP) by a majority vote extended the mandate of the current CB judges until November 30.
Unlike past practice, the CJP Yahya Afridi also voted in favor of giving an extension to the mandate of the judges of the CB. Earlier, he recommended that all SC judges should be included in the CB.
The government has also succeeded in appointing judges sharing the same ideas in the superior judicial power. Now, he would easily manage to appoint chief judges to similar views before the high lessons on July 1.
Legal notice
Abdul Moiz Jaferii Advocate says that the short order in the transfer case is disappointing. The majority focused on the transfer process itself acceptable without expanding on the particular transfer to Islamabad which was made, how it was done and what it aimed to achieve.
Jaferii declares that the order completely ignores the transfer of judges being expressly temporary by the very language of the Constitution. He validates these transfers on the premise that they were safeguarded by needing contributions within the judiciary.
“It then allows the president to redo the transfer and clearly clearly the transfer period and the seniority of the judges themselves, actually opposing the very base on which the transfers were validated: that this process was in the judiciary and isolated.”
He declares that this is a bizzare reading of a simple constitutional premise. He completely ignores the appointment program envisaged in article 175A.
And if we had to count the particular circumstances leading to this petition, completely ignored in the majority order but expressly considered by the minority, its reasoning becomes obvious. Minority opinion, other than the poetry of the roundabout at the end; is constitutionally solid, “he adds.
A former law agent says that the majority has adopted a literal view. “It is based on the exercise of good faith in good faith and good institution within the judiciary by three chief judges. If the three CJs act independently and in the interest of the institution, there should be no problem. Realities and facts on the ground.”
He says that, as in many important recent constitutional cases, emotional advocacy and rhetoric continue instead of calm and convincing arguments. It shows the results every day more and more when judges independent of mind have already been sidelined and disarmed. At least the majority left the question of a temporary or permanent appointment. There is a contradiction like one hand, the whole exercise is in the judiciary, but the case was sent to the president alone. The entire exercise must be ordered again to be carried out, but now the CJ then, IHC has left. Who will give comments on the temporary or permanent status of these judges, he adds.
Hafiz Ahsaan Ahmad Khokhar Advocate said that the majority decision is constitutionally valid, well founded and aligned on the spirit and intention of the Constitution.
He stressed that the judgment of the majority 3-2 rightly affirms that by virtue of article 200, paragraph 1, of the Constitution, these transfers are authorized to the agreement of the president, the chief judges of the high lessons concerned and the consent of the judges of the transfer. The court judged that these conditions had been met conditionally and found no faith in Mala from the president.
He noted that the president had published a notification on February 1, 2024, under article 200, paragraph 1, transferring judge Dogar, judge Sumro and judge Muhammad Asif to the High Court of Islamabad. Their inter-s seniority was then determined by the chief judge of the time Aamer Farooq on February 11, 2025. However, this seniority order was challenged before the Supreme Court under article 184, paragraph 3.
Also explaining, he declared that article 194 made no requirements for a second oath when a judge is transferred between the high lessons, because the oath is to the Constitution itself – and not to a specific court or court. This is also a principle recognized in other constitutional systems.
Hafiz Ahsaan added that article 200 (1) does not specify whether a transfer should be temporary or permanent. After the judgment, it now becomes the president to determine the nature of the transfers. If it is deemed temporary, no other seniority determination is necessary; If it is permanent, the president must determine seniority only according to the initial appointments of the judges.
He stressed that by virtue of article 200, paragraph 3, the conditions of service of a judge cannot be modified negatively during the transfer, thus preserving their rank, their privileges and their rights.
He also observed that the president, as indicated by the court, was to determine independently of seniority without relying on the councils of the federal government. If the president declares permanent transfers and the seniority is therefore based on the initial appointment, the judge Dogar can emerge as the highest among the three – qualifying him for the chief judge of the High Court of Islamabad under article 175a through the Judicial Commission of Pakistan.
Unlike the centralized seniority list of India, he noted that the constitution of Pakistan disputes each high court to determine the seniority according to the initial appointment-a practice also followed in the United Kingdom, the United States, Canada and Australia.
Hafiz Ahsaan, concluding, said that judgment 3-2 was constitutionally sustainable and strengthens the legal structure under articles 200, 194 and 175a. The president’s future decision will help shape a lasting constitutional precedent on judicial seniority and the limits of the presidential authority in such cases.
