• Five Islamabad High Court judges write to CJP, CJs of three high courts
• Insist move will undermine judicial independence, violate law
• Transferring a judge specifically for elevation as CJ termed ‘fraud on the Constitution’

ISLAMABAD: Five of the 10 judges of the Islamabad High Court (IHC), in a letter, have formally opposed the potential transfer of Lahore High Court (LHC) Justice Sarfraz Dogar, warning that his elevation as the IHC chief justice would violate constitutional procedures and judicial norms.

The letter — signed by Justices Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan and Saman Rafat Imtiaz — was addressed to Chief Justice of Pakistan (CJP) Yahya Afridi, IHC Chief Justice Aamer Farooq, LHC Chief Justice Aalia Neelum, and Sindh High Court Chief Justice Mohammad Shafi Siddiqui and raised serious concerns over the possible transfer.

Interestingly, while the names of Justice Miangul Aurangzeb and Justice Arbab Tahir were also included in the letter, it does not bear their signatures.

The letter comes amid speculation that Justice Dogar could be appointed as the next IHC chief justice, as current Chief Justice Aamer Farooq is expected to be elevated to the Supreme Court, with the Judicial Commission of Pakistan (JCP) set to finalise appointments on Feb 10. The JCP will pick eight judges from five high courts.

If transferred, Justice Dogar would be among the panel of five judges vying for the vacant position of the IHC chief justice.

The five IHC justices have formally expressed their opposition to the reported transfer, particularly if the purpose is to consider the transferred judge for appointment as chief justice.

In the strongly worded letter, the judges have raised constitutional and procedural concerns, arguing that such a move would undermine judicial independence, violate the Constitution of Pakistan and set a dangerous precedent.

The justices argue that the transfer of a judge from one high court to another is governed by Article 200 of the Constitution, which requires consultation between the president of Pakistan, the CJP, and the chief justices of both the transferring and receiving high courts.

They reference the landmark Al-Jehad Trust case, which mandates that any such consultation must be “effective, meaningful, purposive and consensus-oriented,” preventing any arbitrary decision-making.

Earlier, three LHC judges, namely Justice Sardar Mohammad Aslam, Justice M. Bilal Khan and Justice Iqbal Hameedur Rehman, were transferred to the IHC and were appointed as the IHC chief justice.

Furthermore, the letter highlighted that since the passage of the 18th Amendment in 2010, no permanent high court transfers had taken place, reinforcing the autonomy of each high court.

A central concern raised by the IHC justices is that a transferred judge would be required to take a fresh oath under Article 194, which would place them at the bottom of the seniority list within the IHC.

This would render them ineligible for immediate consideration for the chief justice position, contradicting the JCP Appointment Rules 2024, which mandate that the Chief Justice of a high court must be appointed from among the three senior-most judges of that court.

The justices argue that transferring a judge solely to appoint them as chief justice would be a “fraud on the Constitution” and an attempt to bypass the established judicial appointment mechanism under Article 175A.

The IHC justices have also warned that allowing such transfers, especially for appointing a chief justice, could lead to external influence over high courts. They assert that this would create a precedent where judges could be strategically transferred to assume key leadership positions, thereby compromising judicial impartiality and altering the power dynamics within the judiciary.

The letter further challenges the rationale behind the transfer, citing the recent increase in the number of judges at the IHC from 10 to 12 under the IHC (Amendment) Act, 2024. It points out that the LHC is already understaffed, with only 35 out of 60 judicial positions filled, compared to 10 out of 12 positions occupied at the IHC.

Additionally, judicial statistics indicate that as of June 30, 2024, the LHC had 197,875 pending cases, while the IHC had only 16,993, just 8.59pc of the LHC’s case backlog.

The justices argue that there was no “public interest” justification for the transfer, as required under Article 200 since the Lahore High Court was in greater need of judicial reinforcements.

Concluding their letter, the IHC justices urged high court chief justices to oppose the transfer, arguing that it would violate judicial norms, undermine the judiciary’s independence, and disrupt the functioning of the IHC.

Published in Dawn, February 1st, 2025