The recent judgment of the Supreme Court of Pakistan, delivered by a 3-2 majority, has conclusively addressed a significant constitutional issue concerning the transfer of High Court judges and the determination of their seniority. The Court upheld the transfer of three judges, from the Lahore High Court, Sindh High Court, and Balochistan High Court, to the Islamabad High Court, affirming that the process was constitutionally valid, well-founded, and consistent with both the letter and spirit of the Constitution.

Article 200 overrides any conflicting provisions in the Islamabad High Court (Establishment) Act, 2010.

However, it would have been more appropriate and institutionally sound had the Supreme Court itself finally determined whether the transfers were temporary or permanent and settled the issue of inter-se seniority of the transferred judges. These two core issues were directly raised, thoroughly argued, and contested by both sides during the proceedings. By remanding these questions back to the President, the judgment leaves open the possibility of continued legal uncertainty and potential constitutional controversy. A clear and conclusive pronouncement by the Court would have prevented future litigation, promoted institutional clarity, and strengthened constitutional jurisprudence on judicial transfers.

The transfer notification, issued by the President of Pakistan on 1st February 2024 under Article 200(1) of the Constitution, involved the transfer of Justice Dogar, Justice Sumro, and Justice Muhammad Asif to the Islamabad High Court. The constitutional requirements for such transfers, consent of the judges concerned, and consultation with the Chief Justices of the respective High Courts were fulfilled, making the action legally sound and procedurally correct.

Subsequently, on 11th February 2025, the then Chief Justice of the Islamabad High Court issued an order determining the inter-se seniority of the transferred judges. This seniority order was challenged before the Supreme Court under Article 184(3), raising essential constitutional questions regarding the nature of judicial transfers, the necessity of a second oath, and the authority responsible for determining seniority.

Transferred judges are not required to retake the oath under Article 194.

The Supreme Court rightly observed that Article 200(1) does not draw any distinction between permanent and temporary transfers. It clarified that the Constitution leaves it to the President of Pakistan to determine the nature of a transfer. The Court also ruled that there was no element of mala fide in the issuance of the transfer notification and that the procedural conditions laid down by the Constitution were met in substance.

On the matter of judicial oath, the judgment reinforced the constitutional position under Article 194: a judge transferred from one High Court to another is not required to retake the oath. The judicial oath is to the Constitution of Pakistan and not to a specific High Court or its territorial jurisdiction. This principle aligns with the established practice in comparative constitutional jurisdictions such as the United Kingdom, the United States, Canada, and Australia.

Importantly, the Court clarified that Article 200 of the Constitution overrides any inconsistent provisions contained in ordinary legislation, including the Islamabad High Court (Establishment) Act, 2010. While the 2010 Act governs the structural and administrative establishment of the Islamabad High Court, it is subordinate to the Constitution. As a superior legal instrument, Article 200 provides a complete constitutional mechanism for the transfer of judges between High Courts.

The President alone determines the nature, temporary or permanent, of a judicial transfer.

Therefore, any interpretation of the 2010 Act that may conflict with the President’s authority under Article 200, such as restricting seniority rights or redefining the nature of transferred posts, must yield to the overriding force of the Constitution. This principle is well-settled in constitutional jurisprudence: where a constitutional provision directly addresses a subject, it prevails over any statutory enactment.

The Court also pointed out that if the President concludes that the transfers are permanent, then he must determine the seniority of the transferred judges based on their original date of appointment as High Court judges. In doing so, the President would be exercising his constitutional authority independently, without being bound by the advice of the federal government. Conversely, if the President determines the transfers to be temporary, the question of seniority would not arise further.

Article 200(3) of the Constitution serves as a safeguard, ensuring that the terms and conditions of service of a transferred judge are not altered to his disadvantage. This provision guarantees continuity of status, privileges, and entitlements, thereby upholding the principle of judicial independence and ensuring parity in service protections.

If the President determines the transfers to be permanent and seniority is reckoned from the date of initial appointment, Justice Dogar would emerge as the senior-most among the transferred judges in the Islamabad High Court. As a result, he could become eligible for consideration as Chief Justice of that Court under the appointment mechanism outlined in Article 175A, through the Judicial Commission of Pakistan.

The case also highlights a key difference between Pakistan and jurisdictions like India. Whereas India maintains a centralized national seniority roster for High Court judges, Pakistan’s constitutional practice entrusts each High Court with the responsibility to manage its seniority structure based on initial appointment dates. This decentralized model mirrors judicial practices in other common law countries and respects the autonomy of provincial High Courts.

If declared permanent, Justice Dogar becomes eligible for the Chief Justice of the Islamabad High Court.

Although the judgment was split, it provides much-needed clarity on the constitutional framework governing judicial transfers, seniority determination, and the discretionary role of the President. The next step, whether the President declares the transfers as permanent or temporary, will further define the contours of constitutional law in this area and establish a lasting precedent.

This development also presents an opportunity for Pakistan to institutionalize a transparent, consistent, and constitutionally sound system for judicial transfers and seniority determinations. Such clarity will not only reinforce legal certainty but also enhance the integrity and independence of the judicial system.

Disclaimer: The opinions expressed in this article are solely those of the author. They do not represent the views, beliefs, or policies of the Stratheia.