THE controversy raging over the seniority of judges in the Islamabad High Court has brought to light broader concerns regarding judicial autonomy, procedural integrity, and the potential ramifications of executive influence on the judiciary.

The dispute, which centres around the appointment of Justice Sardar Muhammad Sarfraz Dogar as acting chief justice — and the transfer of judges from other provinces — has sparked discord and raised questions about the principles governing judicial appointments and transfers.

In addition to Justice Sar­fraz Dogar, Justices Khadim Hussain Soomro and Muham­mad Asif were also transfer­red to the IHC under Article 200(1) of the Constitution.

The latest manifestation of tensions within the IHC surfaced on March 21, when three members of the IHC Tribu­nal — replaced earlier this month following its reconstitution — challenged the authority of both the acting CJ and the president of Pakistan to dissolve or reconstitute the tribunal without clear legal justification.

Despite the legal challenges piling up at its door, the Constitutional Bench’s reluctance to take up the matter underscores complexity of the legal and constitutional issues at play

The tribunal had been handling a case related to the promotion and absorption of a judge in the district judiciary, and their reserved ruling on the matter further complicated the ongoing dispute.

In the eyes of the affected parties, Justice Sarfraz Dogar’s appointment as the acting disrupted the established seniority framework within the high court, prompting a legal challenge from five IHC judges —Justices Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan and Saman Rafat Imtiaz — alongside various bar associations.

These parties have petitioned the Supreme Court to resolve the seniority dispute and sought an order preventing transferred judges from exercising judicial and administrative authority within the IHC.

But despite the increasing number of petitions piling up before it, the Supreme Court’s constitutional bench has yet to schedule hearings on the matter. The delay underscores the complexity of the legal and constitutional issues at play.

‘Power struggle’

A senior counsel, speaking on condition of anonymity, described the situation as a power struggle, in which one faction has emerged victorious by leveraging executive support.

Drawing parallels to past judicial appointments between 1993 and 1996, he recalled how the 1998 Al-Jihad Trust case reaffirmed the primacy of the judiciary in appointments, demonstrating how shifting dynamics have historically influenced judicial structures.

Acknowledging the growing frustration among judges, Supreme Court Bar Association (SCBA) President Mian Muhammad Rauf Atta proposed a novel approach — creating a unified seniority list for all high court judges, based on their elevation to their respective high courts.

Such a system, he argued, would provide clarity, fairness, and credibility while preventing future disputes over judicial seniority. However, he emphasised that any such process should be overseen by a judicial forum led by CJP Yahya Afridi to prevent executive interference.

At the same time, he acknowledged the constitutional reality of Article 200(1), which facilitated the transfer of three judges to the IHC. He pointed out that the Islamabad High Court Act 2010 permits such transfers, making them legally valid.

According to him, erstwhile IHC CJ Aamer Farooq’s rejection of the representation made by disgruntled IHC judges on Feb 8 led to the current round of petitions before the SC. However, he characterised this rejection as an administrative decision rather than a judicial one, expressing scepticism about the success of the petitions, if this distinction holds.

‘Unconstitutional’ actions

Barrister Salahuddin Ahmed, former president of the Sindh High Court Bar Association, argued that if the bench hearing the seniority dispute upholds the principles of judicial independence, the petitions should be accepted. He maintained that the permanent transfer of judges from other high courts is unconstitutional, as constitutional provisions only allow temporary transfers.

Bypassing the established judicial appointment process through the Judicial Commission of Pakistan (JCP), he warned, undermines the commission’s role and grants undue influence to the executive.

Furthermore, he asserted that allowing transferred judges to function without taking a fresh oath is unconstitutional, as it enables the executive to displace senior judges by bringing in external appointees, thereby disturbing judicial hierarchy.

Mr Ahmed also linked these judicial manoeuvres to broader concerns about executive overreach, pointing out that some of the affected judges had previously spoken out against interference by intelligence agencies.

These judges had raised serious allegations about surveillance and intimidation, including the installation of cameras in their private spaces and the abduction of their relatives. He argued that their displacement was a retaliatory move by the government and establishment, which was further corroborated by similar accounts from other high courts.

When questioned about the potential erosion of public trust due to internal judicial conflicts, Mr Ahmed maintained that exposing wrongdoing was necessary. If the linen is truly dirty, it must be washed, he said, emphasising that the real threat to judicial credibility comes from judges who turn a blind eye to executive interference rather than those who challenge it.

Means of ‘executive control’

Former additional attorney general (AAG) Tariq Mehmood Kho­khar echoed these concerns, characterising the transfers as an ‘open secret’ aimed at exerting executive control. He pointed out that the three transferred judges now constitute over 23 per cent of the IHC’s total strength, questioning why the capital’s high court was singled out for such a drastic reshuffle.

He also highlighted how one of these judges swiftly replaced the senior puisne judge, disrupting the established seniority structure and undermining the court’s impartiality and independence.

Mr Khokhar drew parallels to Articles 222 of the Indian Constitution and its colonial-era origins in the Indian High Courts Act of 1861. While India has evolved jurisprudence to prevent executive control over its judiciary, he lamented that Pakistan appears to be expanding executive influence.

Senior counsel Khwaja Ahmad Hosain reinforced the argument that judicial transfers should not serve as punitive measures. He asserted that such powers must be exercised in a manner that up­­holds fairness and public interest.

In this case, he argued, the transfers were designed to sideline certain judges, making them inconsistent with the principle of judicial independence.

He cited past instances where judges, including Justice Qazi Faez Isa, had taken legal action to protect their positions, emphasising that the current dispute was not about personal grievances but about safeguarding the judiciary’s autonomy.

Mr Hosain warned that if the government selectively appoints judges who align with its preferences, it signals a lack of confidence in its own legal position. He expressed confidence that an independent judicial forum assessing the case on its merits would strike down these transfers, reinforcing the judiciary’s autonomy.

Published in Dawn, April 5th, 2025