Chief Justice Transfer Row: Judges Express Concerns
The transfer of a judge from one high court to another has raised concerns about the independence of the judiciary and the potential for political interference. The issue has sparked a debate among legal experts, with some arguing that it is unconstitutional and others questioning the fairness of transferring a judge with seniority intact.
In a rare move, five judges of the Islamabad High Court have written a letter to the Chief Justice of Pakistan, the chief justices of the Lahore High Court and Sindh High Court, expressing concerns over reports of a permanent transfer of a judge from the Lahore High Court to the Islamabad High Court, citing it as unconstitutional and detrimental to the independence of the judiciary.
The judges, including Justice Mohsin Akhtar Kayani, Justice Tariq Mehmood Jahangiri, Justice Sardar Ejaz Ishaq Khan, Justice Babar Sattar, and Justice Saman Rafat Imtiaz, argue that such a transfer would set a pernicious precedent and have far-reaching consequences, including the appointment of a judge who is lower in seniority to the position of chief justice at the Islamabad High Court. They contend that the transfer would eliminate the need for the Judicial Commission to consider and recommend candidates for appointment as chief justice, and would undermine the Constitution's provision of designating the senior-most judges as eligible for the position.
The judges also argue that the transfer would allow the president to exercise discretion not specified in the Constitution, and would facilitate the process of controlling a High Court by introducing a judge from another High Court as the Chief Justice. They cite the 26th Amendment to the Constitution, which did not institutionalize the mechanism of transferring judges from one high court to another, and note that under Article 200, the consent of the judge being transferred is required, along with consultation with the Chief Justice of Pakistan and the Chief Justices of the relevant courts.
Former additional attorney general Waqar Rana has stated that any attempt to exercise the purported power of transfer by the president would be "patently mala fide and also unconstitutional." Chaudhry Faisal Hussain, a lawyer, has said that the IHC judges are a "ray of hope in these dark times" and that the issues raised in the letter are a "voice of the people."
The controversy surrounding the transfer of a judge from the Lahore High Court to the Islamabad High Court has sparked a debate among legal experts, with some arguing that it undermines judicial independence while others question the fairness of transferring a judge with seniority intact. The issue at the centre of the debate is the matter of seniority, with experts pondering the implications of a transferred judge carrying their seniority to their new high court.