Govt continues to score legal victories

Express Tribune

20-06-2025

After the 26th Constitutional Amendment, the government has got another major victory on Thursday as the constitutional bench endorsed the transfer of three judges from different high courts to the Islamabad High Court (IHC).
The government's legal team must be jubilant that in view of the majority order, Justice Muhammad Sarfraz Dogar will continue as acting chief justice of the IHC, which is seen as crucial for the executive authority.
The majority order will further frustrate the five IHC judges, who have been facing a tough time since writing a letter to the Supreme Judicial Council (SJC) regarding interference of agencies in the judicial functions, particularly on matters related to the PTI.
A senior government functionary admits that the 26th amendment is the outcome of the six IHC judges' letter. Constitutional Bench (CB) was created through the 26th constitutional amendment. The real purpose of the amendment was to control the superior judiciary for the stability of the current political set-up.
The present government doesn't want that courts should give any substantive relief to the incarcerated former prime minister as he is perceived as a threat to the system.
Since November last year, legal circles were keenly watching the outcome of three cases that they considered would determine how far the judiciary could go to assert its independence.
The constitutional bench did not disappoint the government as two of the cases had been decided in its favour.
Firstly, trial of civilians in the military courts have been endorsed by the CB. Now, the government initiative regarding the transfer of three judges to the IHC has also been endorsed by the constitutional bench led by Justice Muhammad Ali Mazhar.
It is interesting to note that the CB is not taking up petitions against the 26th constitutional amendment.
If things stand the way as they are, it is no surprise that the government may get another victory in the reserved seats case soon.
The chance that the July 12 order regarding the allocation of reserved seats will survive is very low. If the CB sets aside the decision, then the government will get a two-thirds majority in parliament.
Moreover, in view of the "satisfactory performance", the Judicial Commission of Pakistan (JCP) by a majority vote extended the tenure of present CB judges until November 30.
Unlike the past practice, CJP Yahya Afridi also voted in favour of giving an extension to the CB judges' tenure. Earlier, he was advocating that all SC judges should be included in the CB.
The government has also been successful in appointing like-minded judges in the superior judiciary. Now, it would easily manage to appoint like-minded' chief justices in the high courts on July 1.
Legal opinion
Abdul Moiz Jaferii advocate says that the short order in the judges transfer case is disappointing. The majority has focused on the process of transfer itself being acceptable without dilating upon the particular transfer to Islamabad that was effected, how it was effected and what it aimed to achieve.
Jaferii states that the order completely ignores the transfer of judges being expressly temporary in nature by the very language of the Constitution. It proceeds to validate such transfers on the premise of them being safeguarded by needing input from within the judiciary.
"It then allows the president to redo the transfer and make clear the period of transfer and the seniority of the judges themselves, effectively opposing the very basis on which the transfers were validated: that this process was within the judiciary and insulated."
He states that it is a bizzare reading of a plain constitutional premise. It ignores completely the scheme of appointment envisaged in Article 175A.
And if one were to count the peculiar circumstances leading to this petition, completely ignored in the majority order but expressly considered by the minority, its reasoning becomes obvious. The minority opinion, other than the roundabout poetry at the end; is constitutionally sound", he adds.
A former law officer says that the majority has taken a literal view. "It is premised on good faith and institution oriented bona fide exercise within the judiciary by three chief justices. If all three CJs act independently and in the interest of the institution, there should be no problem. Perhaps this was the reason Article 200 was inserted and it is working well in India. But if they don't act independently, this will become an instrument of coercion and silencing some judges, as in the present case. The majority has looked purely on law but not considered ground realities and facts."
He says that as in many recent important constitutional cases, emotional advocacy and rhetoric continues instead of calm and cogent arguments. It is showing results every day more so when independent minded judges have already been sidelined and disarmed. At least the majority has left the question of temporary or permanent appointment. There is some contradiction as one the one hand the whole exercise is within the judiciary yet the matter has been sent to President alone. The whole exercise should be ordered to be conducted again but now the then CJ, IHC has gone. Who will give input on temporary or permanent status these judges, he adds.
Hafiz Ahsaan Ahmad Khokhar advocate has stated that the majority decision is constitutionally valid, well-founded, and aligned with the spirit and intent of the constitution.
He emphasised that the 3-2 majority judgment rightly affirms that under Article 200(1) of the Constitution, such transfers are permissible with the concurrence of the President, Chief Justices of the concerned high courts, and consent of the transferee judges. The court held that these conditions were conditionally met and found no mala fide on the part of the President.
He noted that the president had issued a notification on February 1, 2024, under Article 200(1), transferring Justice Dogar, Justice Sumro, and Justice Muhammad Asif to the Islamabad High Court. Their inter-se seniority was later determined by then Chief Justice Aamer Farooq on 11th February 2025. However, this seniority order was challenged before the Supreme Court under Article 184(3).
Explaining further, he said Article 194 makes no requirement for a second oath when a judge is transferred between High Courts, as the oath is to the Constitution itself — not to any specific court or jurisdiction. This is a principle recognized across other constitutional systems as well.
Hafiz Ahsaan added that Article 200(1) does not specify whether a transfer must be temporary or permanent. Following the judgment, it now falls to the President to determine the nature of the transfers. If deemed temporary, no further seniority determination is needed; if permanent, the President must determine seniority based solely on the judges' original appointment dates.
He stressed that under Article 200(3), the service terms of a judge cannot be adversely altered upon transfer, thereby preserving their rank, privileges, and entitlements.
He further observed that the President, as directed by the Court, must independently determine seniority without relying on advice from the federal government. If the President declares the transfers permanent, and seniority is accordingly based on initial appointment, Justice Dogar may emerge as the senior-most among the three — qualifying him for consideration as Chief Justice of Islamabad High Court under Article 175A through the Judicial Commission of Pakistan.
Contrasting with India's centralized seniority list, he noted that Pakistan's Constitution entrusts each High Court to determine seniority based on initial appointment — a practice also followed in the UK, US, Canada, and Australia.
Hafiz Ahsaan while concluding said the 3-2 judgment is constitutionally sustainable and reinforces the legal structure under articles 200, 194, and 175A. The president's forthcoming decision will help shape a lasting constitutional precedent on judicial seniority and the limits of presidential authority in such matters.