The question of judicial transfers and seniority retention under Article 200 of the Constitution of Pakistan has sparked legal debate, particularly regarding a reported transfer to the Islamabad High Court (IHC). The matter has divided legal experts, with some arguing that such transfers must strictly follow constitutional guidelines, while others question their impact on judicial hierarchy and independence.
Legal Framework for Transfers
Article 200 of the Constitution allows the temporary transfer of a judge from one high court to another, subject to the consent of:
- The judge being transferred.
- The Chief Justices of both the sending and receiving high courts.
- The Chief Justice of Pakistan (CJP).
- The final approval by the President of Pakistan.
For a permanent transfer, the same conditions apply. However, there is no precedent for transferring a judge with seniority intact.
Concerns Raised by IHC Judges
Five IHC judges have formally objected to the reported transfer of a Lahore High Court (LHC) judge to lead the IHC, arguing that:
- High courts are independent entities, and transfers should not override internal seniority.
- The 26th Amendment did not institutionalize permanent judicial transfers.
- The judicial hierarchy should be preserved, meaning seniority should apply within each high court, rather than being carried over from another.
Views of Legal Experts
1. Article 200 as a Valid Mechanism
Ahmed Bilal Mehboob (PILDAT) argues that Article 200 is a valid provision and can be used at any time, even if it has been rarely exercised in the past. However, he emphasizes that its application must strictly adhere to the Constitution.
2. Seniority Concerns and Precedent
Barrister Ali Tahir and Supreme Court Advocate Basil Nabi Malik both support the IHC judges’ stance, arguing that:
- When a judge takes an oath, it is as a judge of a specific high court.
- If transferred, the judge would need to take a fresh oath, effectively making them the most junior in the new high court.
- Allowing a judge to retain seniority in a new high court would create disruptions in judicial hierarchy, potentially affecting promotion prospects of existing judges.
- Judicial transfers should not be treated like bureaucratic postings, where officials are reassigned at will.
In contrast, Advocate Hafiz Ahsan Ahmad Khokhar argues that:
- There is precedent for judicial transfers under Article 200. Examples include:
- Justice Sardar Mohammad Aslam (LHC to IHC, 2008).
- Justice M. Bilal Khan (LHC to IHC, 2009).
- Justice Iqbal Hameedur Rehman (transferred after the IHC’s re-establishment under the 18th Amendment).
- A judge’s seniority, benefits, and privileges remain intact even after transfer.
Potential Implications
- Judicial Independence: The IHC judges argue that external transfers could undermine judicial independence by allowing external influence on the composition of high courts.
- Seniority Disputes: If a judge retains seniority after transfer, it could lead to resentment among existing judges and internal conflicts within the receiving high court.
- Legal Challenges: If the transfer proceeds, it may be challenged in the Supreme Court, creating a judicial controversy.
Conclusion
The constitutional validity of a transfer under Article 200 is not in question; however, the retention of seniority remains a contentious issue. While past transfers have taken place, they did not necessarily establish a binding precedent on seniority retention. Unless explicitly clarified, the principle of judicial hierarchy suggests that a transferred judge should be placed at the bottom of the seniority list in the new high court.
