The recent transfer of three judges from different High Courts to the Islamabad High Court under Article 200 of the Constitution has sparked an important legal discussion regarding their seniority and prospects within the judiciary. The seniority of transferee judges will be a key issue, as it determines their ranking and eligibility for higher judicial appointments.

Judicial seniority in Pakistan is determined by the date of appointment and the official warrant, ensuring a structured hierarchy in the judiciary.

Seniority among High Court judges is primarily determined by the date of their appointment and the administration of the oath of office. If multiple judges are appointed on the same day, seniority is established according to the order in which their names appear in the official appointment warrant issued by the President of Pakistan. Given that the transferred judges had already taken their oaths when first appointed to their respective High Courts, as per Article 194 of the Constitution, which pertains to the administration of oaths, does not apply to their transfer.

Another significant constitutional aspect is Article 205, which, along with the Fifth Schedule, governs the compensation, privileges, and terms of service of judges. The Constitution ensures that a judge’s salary, privileges, and conditions of service cannot be altered to their disadvantage. Any modification, including changes in transfer policies, would require a constitutional amendment or appropriate legislation.

In the context of the recent transfers, Justice Sarfraz Dogar, who was previously serving at the Lahore High Court, is now the most senior judge at the Islamabad High Court due to his earlier appointment compared to other judges at the IHC. If the current Chief Justice of the Islamabad High Court, Justice Amir Farooq, is elevated to the Supreme Court in the upcoming judicial commission meeting, Justice Dogar will not only be among the three most senior judges considered for the Chief Justice appointment at the IHC but will also be reviewed by the judicial commission under the new rules introduced in 2024.

Article 200 of the Constitution lays down the framework for transferring a High Court judge from one court to another. It empowers the President of Pakistan to initiate such transfers, but only after obtaining the judge’s prior consent and consulting with the Chief Justice of Pakistan and the Chief Justices of both the transferring and receiving High Courts. The principle of judicial consultation ensures transparency and protects the rights of the transferred judge, maintaining their seniority, privileges, and entitlements. The history of judicial transfers under Article 200 provides precedents that reinforce the legitimacy of such actions.

Article 200 mandates the President to transfer judges only after consultation with key judicial figures, ensuring transparency and due process.

For instance, Justice Sardar Mohammad Aslam was transferred from the Lahore High Court to the Islamabad High Court in 2008 and subsequently became its Chief Justice. Similarly, Justice M. Bilal Khan and Justice Iqbal Hameed ur Rehman were also transferred under Article 200 and later appointed as Chief Justices of the Islamabad High Court. These cases illustrate that transferred judges can ascend to the highest judicial offices in the transferee High Court, provided the constitutional process is duly followed.

While a Chief Justice of a High Court may recommend a judge’s transfer for administrative reasons, the actual transfer process is constitutionally vested in the President, subject to consultation with the Chief Justice of Pakistan and the relevant High Court Chief Justices. This constitutional safeguard prevents arbitrary transfers and ensures judicial independence.

Despite concerns raised by certain judges of the Islamabad High Court, the legal framework remains clear: if all constitutional office holders outlined in Article 200 agree to a transfer following due consultation, the process cannot be legally halted. The Constitution provides a well-defined mechanism for such judicial transfers, ensuring continuity, fairness, and adherence to legal precedents in determining judicial seniority and appointments.

Islamabad High Court holds a special place amongst other high courts which primarily adjudicate cases related to those provinces. Islamabad High Court however is a high court that operates in the federal territory. Islamabad High Court was created under an act of the parliament in 2010 and the act clearly mentions that judges in this high court will be transferred from other high courts. The transfer of judges from other high courts to Islamabad High Court is much more important to establish its federal credentials. Hence the presence of judges from other provinces should be music to our ears.

Past judicial transfers, such as those of Justice Sardar Mohammad Aslam and Justice Iqbal Hameed ur Rehman, set a precedent for Chief Justice appointments at Islamabad High Court.

In the evolving judicial landscape, the recent transfers to the Islamabad High Court reaffirmed the importance of constitutional provisions in maintaining the integrity of judicial appointments. As Pakistan navigates the complexities of judicial governance, adherence to constitutional mandates remains paramount in ensuring an independent and well-functioning judiciary.

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.