CB upholds transfer of judges to IHC
In a majority verdict, a constitutional bench (CB) of the Supreme Court on Thursday upheld the transfer of three provincial high court judges to the Islamabad High Court (IHC), noting that these transfers could not be declared new appointments.
However, the majority judges partially remanded the matter to the President of Pakistan to determine the seniority of the transferred judges after examining and vetting their service record "as soon as possible, including the question of whether the transfer is on a permanent or temporary basis".
Two of the judges — Justice Naeem Akhtar Afghan and Justice Shakeel Ahmed — however, declared the notification for transfer of the judges "null, void and of no legal effect" in their minority order.
On February 1, the Ministry of Law issued a notification for the transfer of Justice Sardar Muhammad Sarfraz Dogar, Justice Khadim Hussain Soomro and Justice Muhammad Asif — respectively from the Lahore High Court, the Sindh High Court and the Balochistan High Court — to the IHC.
Following this transfer, endorsed by the president, the IHC issued a new seniority list, ranking Justice Dogar as the senior puisne judge. Five IHC judges filed representations against this seniority list.
However, the then IHC chief justice, Aamer Farooq rejected these representations. After elevation of Justice Farooq to the Supreme Court, Justice Dogar was also elevated as the IHC acting chief justice.
The IHC judges and some other petitioners including Imran Khan challenged the ministry's notification as well the new seniority list in the Supreme Court, whose five-member CB heard the matter.
On Thursday, three members of the CBJustice Muhammad Ali Mazhar, Justice Shahid Bilal Hassan, and Justice Salahuddin Panhwar issued their short order, disposing of the petitions.
The order noted that the powers of the president under Sub-article (1) of Article 200 of the Constitution for the transfer of a judge and the provisions contained under Article 175A for appointment of judges by the Judicial Commission of Pakistan (JCP) are two distinct provisions dealing with different situations.
"Neither do they overlap nor override each other. The transfer of a judge by the President of Pakistan by means of Article 200 of the Constitution (permanently or temporarily) cannot be construed as a fresh appointment.
"Furthermore, the powers of transfer conferred to the President by none other than the framers of the Constitution cannot be questioned on the anvil or ground that if the posts were vacant in the IHC, then why they were not filled up by JCP through fresh appointments.
"One more important facet that cannot be lost sight of is that the transfer from one high court to another can only be made within the sanctioned strength, which can only be regarded as a mere transfer and does not amount to raising the sanctioned strength of a particular high court," it said.
It noted that if it is presumed that all posts should be filled by the JCP alone through fresh appointments, then such interpretation or state of mind would not only go against the manifest intention of the framers of the Constitution but will also amount to negating or making redundant the substratum and existence of Article 200 of the Constitution.
"The article is absolutely not dependent, concomitant, or at the mercy of Article 175A of the Constitution, but is an independent and standalone provision dealing with the transfer of judges of a High Court (permanently or temporarily) and not the appointment of judges, which assignment has been incontrovertibly conferred to the JCP autonomously in terms of Article 175A of the Constitution."
The majority judges, however, partially remanded the matter to the president, without upsetting the notification of transfer, to determine the seniority after examining/vetting the service record of the transferred judges, including the question of whether the transfer is on a permanent or temporary basis.
"Till such time that the seniority and nature of transfer (permanent or temporary) of the transferee judges is determined by the President of Pakistan by means of notification/order, Mr Justice Sardar Muhammad Sarfraz Dogar, already holding the office of Acting Chief Justice of the IHC, will continue to perform as the acting chief CJ," they added.
The dissenting note
Justice Naeem Akhtar Afghan and Justice Shakeel Ahmed disagreed with the majority order and declared the notification for transfer of the judge null and void.
They stated that Clause (2) of Article 200 of the Constitution is subservient to Clause (1) of Article 200 of the Constitution and both are interconnected.
"According to the Doctrine of Harmonious Construction, while interpreting Clause (1) and Clause (2) of Article 200, both the clauses have to be harmonized and, being consistent with each other, have to be read in conjunction with each other for giving effect to both without creating conflict or absurdity"
"When Clause (1) and Clause (2) of Article 200 are read in conjunction with each other, it provides that when, in exercise of his discretion, the president transfers a judge from one high court to another, during the period for which he serves as a judge of the high court to which he is transferred, the judge so transferred is entitled to such allowances and privileges, in addition to his salary, as determined by the President."
The order said the Attorney General for Pakistan conceded and categorically conveyed to the court on behalf of the Federation of Pakistan that the three Judges have been transferred on permanent basis.
It said Clause (1) and Clause (2) of Article 200, read in conjunction with each other, do not provide for permanent transfer of a judge from one high court to another and it provides for transfer of a judge a period — on temporary basis.
It said the permanent transfer of three judges to the IHC has been made in the wrong exercise of discretion under Clause (1) of Article 200 of the Constitution and has offended Article 175A of the Constitution, making it redundant.
"The process for permanent transfer of three judges to the IHC is suffering from concealment of relevant and material facts from the transferee Judges, from the chief justices of the IHC, LHC, SHC, BHC and from the Hon'ble Chief Justice of Pakistan (CJP)
"The process for permanent transfer of three judges to the IHC is also lacking meaningful, purposive and consensus oriented consultation with the chief justices of the IHC, LHC, SHC, BHC and Hon'ble CJP on all the relevant issues," it added.
The minority order noted the intelligence agencies, including the ISI, have no role under the Constitution for appointment or transfer of Judges.
"Being subordinate to the executive, the intelligence agencies, including the ISI, cannot override the executive, the judiciary, the constitutional bodies and the constitutional office holders," it added.
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Express Tribune
9 hours ago
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Govt continues to score legal victories
After the 26th Constitutional Amendment, the government has got another major victory on Thursday as the constitutional bench endorsed the transfer of three judges from different high courts to the Islamabad High Court (IHC). The government's legal team must be jubilant that in view of the majority order, Justice Muhammad Sarfraz Dogar will continue as acting chief justice of the IHC, which is seen as crucial for the executive authority. The majority order will further frustrate the five IHC judges, who have been facing a tough time since writing a letter to the Supreme Judicial Council (SJC) regarding interference of agencies in the judicial functions, particularly on matters related to the PTI. A senior government functionary admits that the 26th amendment is the outcome of the six IHC judges' letter. Constitutional Bench (CB) was created through the 26th constitutional amendment. The real purpose of the amendment was to control the superior judiciary for the stability of the current political set-up. The present government doesn't want that courts should give any substantive relief to the incarcerated former prime minister as he is perceived as a threat to the system. Since November last year, legal circles were keenly watching the outcome of three cases that they considered would determine how far the judiciary could go to assert its independence. The constitutional bench did not disappoint the government as two of the cases had been decided in its favour. Firstly, trial of civilians in the military courts have been endorsed by the CB. Now, the government initiative regarding the transfer of three judges to the IHC has also been endorsed by the constitutional bench led by Justice Muhammad Ali Mazhar. It is interesting to note that the CB is not taking up petitions against the 26th constitutional amendment. If things stand the way as they are, it is no surprise that the government may get another victory in the reserved seats case soon. The chance that the July 12 order regarding the allocation of reserved seats will survive is very low. If the CB sets aside the decision, then the government will get a two-thirds majority in parliament. Moreover, in view of the "satisfactory performance", the Judicial Commission of Pakistan (JCP) by a majority vote extended the tenure of present CB judges until November 30. Unlike the past practice, CJP Yahya Afridi also voted in favour of giving an extension to the CB judges' tenure. Earlier, he was advocating that all SC judges should be included in the CB. The government has also been successful in appointing like-minded judges in the superior judiciary. Now, it would easily manage to appoint like-minded' chief justices in the high courts on July 1. Legal opinion Abdul Moiz Jaferii advocate says that the short order in the judges transfer case is disappointing. The majority has focused on the process of transfer itself being acceptable without dilating upon the particular transfer to Islamabad that was effected, how it was effected and what it aimed to achieve. Jaferii states that the order completely ignores the transfer of judges being expressly temporary in nature by the very language of the Constitution. It proceeds to validate such transfers on the premise of them being safeguarded by needing input from within the judiciary. "It then allows the president to redo the transfer and make clear the period of transfer and the seniority of the judges themselves, effectively opposing the very basis on which the transfers were validated: that this process was within the judiciary and insulated." He states that it is a bizzare reading of a plain constitutional premise. It ignores completely the scheme of appointment envisaged in Article 175A. And if one were to count the peculiar circumstances leading to this petition, completely ignored in the majority order but expressly considered by the minority, its reasoning becomes obvious. The minority opinion, other than the roundabout poetry at the end; is constitutionally sound", he adds. A former law officer says that the majority has taken a literal view. "It is premised on good faith and institution oriented bona fide exercise within the judiciary by three chief justices. If all three CJs act independently and in the interest of the institution, there should be no problem. Perhaps this was the reason Article 200 was inserted and it is working well in India. But if they don't act independently, this will become an instrument of coercion and silencing some judges, as in the present case. The majority has looked purely on law but not considered ground realities and facts." He says that as in many recent important constitutional cases, emotional advocacy and rhetoric continues instead of calm and cogent arguments. It is showing results every day more so when independent minded judges have already been sidelined and disarmed. At least the majority has left the question of temporary or permanent appointment. There is some contradiction as one the one hand the whole exercise is within the judiciary yet the matter has been sent to President alone. The whole exercise should be ordered to be conducted again but now the then CJ, IHC has gone. Who will give input on temporary or permanent status these judges, he adds. Hafiz Ahsaan Ahmad Khokhar advocate has stated that the majority decision is constitutionally valid, well-founded, and aligned with the spirit and intent of the constitution. He emphasised that the 3-2 majority judgment rightly affirms that under Article 200(1) of the Constitution, such transfers are permissible with the concurrence of the President, Chief Justices of the concerned high courts, and consent of the transferee judges. The court held that these conditions were conditionally met and found no mala fide on the part of the President. He noted that the president had issued a notification on February 1, 2024, under Article 200(1), transferring Justice Dogar, Justice Sumro, and Justice Muhammad Asif to the Islamabad High Court. Their inter-se seniority was later determined by then Chief Justice Aamer Farooq on 11th February 2025. However, this seniority order was challenged before the Supreme Court under Article 184(3). Explaining further, he said Article 194 makes no requirement for a second oath when a judge is transferred between High Courts, as the oath is to the Constitution itself — not to any specific court or jurisdiction. This is a principle recognized across other constitutional systems as well. Hafiz Ahsaan added that Article 200(1) does not specify whether a transfer must be temporary or permanent. Following the judgment, it now falls to the President to determine the nature of the transfers. If deemed temporary, no further seniority determination is needed; if permanent, the President must determine seniority based solely on the judges' original appointment dates. He stressed that under Article 200(3), the service terms of a judge cannot be adversely altered upon transfer, thereby preserving their rank, privileges, and entitlements. He further observed that the President, as directed by the Court, must independently determine seniority without relying on advice from the federal government. If the President declares the transfers permanent, and seniority is accordingly based on initial appointment, Justice Dogar may emerge as the senior-most among the three — qualifying him for consideration as Chief Justice of Islamabad High Court under Article 175A through the Judicial Commission of Pakistan. Contrasting with India's centralized seniority list, he noted that Pakistan's Constitution entrusts each High Court to determine seniority based on initial appointment — a practice also followed in the UK, US, Canada, and Australia. Hafiz Ahsaan while concluding said the 3-2 judgment is constitutionally sustainable and reinforces the legal structure under articles 200, 194, and 175A. The president's forthcoming decision will help shape a lasting constitutional precedent on judicial seniority and the limits of presidential authority in such matters.
Express Tribune
10 hours ago
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CB upholds transfer of judges to IHC
In a majority verdict, a constitutional bench (CB) of the Supreme Court on Thursday upheld the transfer of three provincial high court judges to the Islamabad High Court (IHC), noting that these transfers could not be declared new appointments. However, the majority judges partially remanded the matter to the President of Pakistan to determine the seniority of the transferred judges after examining and vetting their service record "as soon as possible, including the question of whether the transfer is on a permanent or temporary basis". Two of the judges — Justice Naeem Akhtar Afghan and Justice Shakeel Ahmed — however, declared the notification for transfer of the judges "null, void and of no legal effect" in their minority order. On February 1, the Ministry of Law issued a notification for the transfer of Justice Sardar Muhammad Sarfraz Dogar, Justice Khadim Hussain Soomro and Justice Muhammad Asif — respectively from the Lahore High Court, the Sindh High Court and the Balochistan High Court — to the IHC. Following this transfer, endorsed by the president, the IHC issued a new seniority list, ranking Justice Dogar as the senior puisne judge. Five IHC judges filed representations against this seniority list. However, the then IHC chief justice, Aamer Farooq rejected these representations. After elevation of Justice Farooq to the Supreme Court, Justice Dogar was also elevated as the IHC acting chief justice. The IHC judges and some other petitioners including Imran Khan challenged the ministry's notification as well the new seniority list in the Supreme Court, whose five-member CB heard the matter. On Thursday, three members of the CBJustice Muhammad Ali Mazhar, Justice Shahid Bilal Hassan, and Justice Salahuddin Panhwar issued their short order, disposing of the petitions. The order noted that the powers of the president under Sub-article (1) of Article 200 of the Constitution for the transfer of a judge and the provisions contained under Article 175A for appointment of judges by the Judicial Commission of Pakistan (JCP) are two distinct provisions dealing with different situations. "Neither do they overlap nor override each other. The transfer of a judge by the President of Pakistan by means of Article 200 of the Constitution (permanently or temporarily) cannot be construed as a fresh appointment. "Furthermore, the powers of transfer conferred to the President by none other than the framers of the Constitution cannot be questioned on the anvil or ground that if the posts were vacant in the IHC, then why they were not filled up by JCP through fresh appointments. "One more important facet that cannot be lost sight of is that the transfer from one high court to another can only be made within the sanctioned strength, which can only be regarded as a mere transfer and does not amount to raising the sanctioned strength of a particular high court," it said. It noted that if it is presumed that all posts should be filled by the JCP alone through fresh appointments, then such interpretation or state of mind would not only go against the manifest intention of the framers of the Constitution but will also amount to negating or making redundant the substratum and existence of Article 200 of the Constitution. "The article is absolutely not dependent, concomitant, or at the mercy of Article 175A of the Constitution, but is an independent and standalone provision dealing with the transfer of judges of a High Court (permanently or temporarily) and not the appointment of judges, which assignment has been incontrovertibly conferred to the JCP autonomously in terms of Article 175A of the Constitution." The majority judges, however, partially remanded the matter to the president, without upsetting the notification of transfer, to determine the seniority after examining/vetting the service record of the transferred judges, including the question of whether the transfer is on a permanent or temporary basis. "Till such time that the seniority and nature of transfer (permanent or temporary) of the transferee judges is determined by the President of Pakistan by means of notification/order, Mr Justice Sardar Muhammad Sarfraz Dogar, already holding the office of Acting Chief Justice of the IHC, will continue to perform as the acting chief CJ," they added. The dissenting note Justice Naeem Akhtar Afghan and Justice Shakeel Ahmed disagreed with the majority order and declared the notification for transfer of the judge null and void. They stated that Clause (2) of Article 200 of the Constitution is subservient to Clause (1) of Article 200 of the Constitution and both are interconnected. "According to the Doctrine of Harmonious Construction, while interpreting Clause (1) and Clause (2) of Article 200, both the clauses have to be harmonized and, being consistent with each other, have to be read in conjunction with each other for giving effect to both without creating conflict or absurdity" "When Clause (1) and Clause (2) of Article 200 are read in conjunction with each other, it provides that when, in exercise of his discretion, the president transfers a judge from one high court to another, during the period for which he serves as a judge of the high court to which he is transferred, the judge so transferred is entitled to such allowances and privileges, in addition to his salary, as determined by the President." The order said the Attorney General for Pakistan conceded and categorically conveyed to the court on behalf of the Federation of Pakistan that the three Judges have been transferred on permanent basis. It said Clause (1) and Clause (2) of Article 200, read in conjunction with each other, do not provide for permanent transfer of a judge from one high court to another and it provides for transfer of a judge a period — on temporary basis. It said the permanent transfer of three judges to the IHC has been made in the wrong exercise of discretion under Clause (1) of Article 200 of the Constitution and has offended Article 175A of the Constitution, making it redundant. "The process for permanent transfer of three judges to the IHC is suffering from concealment of relevant and material facts from the transferee Judges, from the chief justices of the IHC, LHC, SHC, BHC and from the Hon'ble Chief Justice of Pakistan (CJP) "The process for permanent transfer of three judges to the IHC is also lacking meaningful, purposive and consensus oriented consultation with the chief justices of the IHC, LHC, SHC, BHC and Hon'ble CJP on all the relevant issues," it added. The minority order noted the intelligence agencies, including the ISI, have no role under the Constitution for appointment or transfer of Judges. "Being subordinate to the executive, the intelligence agencies, including the ISI, cannot override the executive, the judiciary, the constitutional bodies and the constitutional office holders," it added.
Business Recorder
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Maintenance of Public Order Ordinance 1960: LHC asks federal Law Ministry to review detention provisions
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