Islamabad:
After the 26th constitutional amendment, the Government obtained another important victory on Thursday when the Constitutional Bank supported the transfer of three judges from different courts higher than the Superior Court of Islamabad (IHC).
The government’s legal team must be jubilant that, in view of the majority order, Judge Muhammad Sarfraz Dogar will continue as the president of the Supreme Court of the IHC, which is considered crucial for the executive authority.
The majority order will further frustrate the five IHC judges, who have faced a difficult time since they wrote a letter to the Supreme Judicial Council (SJC) with respect to the interference of agencies in judicial functions, particularly in matters related to the PTI.
A senior government official admits that the 26th amendment is the result of the letter of the six IHC judges. The Constitutional Bank (CB) was created through the 26th constitutional amendment. The true purpose of the amendment was to control the superior judiciary for the stability of the current political configuration.
The current government does not want the courts to grant a substantive relief to the former imprisoned prime minister, since it is perceived as a threat to the system.
Since November of last year, legal circles were deeply observing the result of three cases that would consider determining how far the Judiciary could go to affirm its independence.
The Constitutional Bank did not disappoint the government since two of the cases had decided in their favor.
First, the judgment of civilians in the military courts has been supported by the CB. Now, the government’s initiative regarding the transfer of three IHC judges has also been supported by the Constitutional Bank led by Judge Muhammad Ali Mazhar.
It is interesting to note that the CB is not taking requests against the 26th constitutional amendment.
If things stand as they are, it is not surprising that the government can obtain another victory in the case of the reserved seats soon.
The possibility of surviving the order of July 12 with respect to the allocation of reserved seats is very low. If the CB leaves the decision aside, then the government will obtain a two -thirds majority in Parliament.
In addition, in view of the “satisfactory performance”, the Judicial Commission of Pakistan (JCP) for a majority of vote extended the possession of current CB judges until November 30.
Unlike past practice, CJP Yahya Afridi also voted in favor of giving an extension to the possession of CB judges. Previously, I advocated that all SC judges should be included in the CB.
The Government has also been successful in appointing judges of related ideas in the superior judiciary. Now, he would easily fix them to appoint ‘Judges of related ideas in the higher courts on July 1.
Legal opinion
Abdul Moiz Jaferii Advocate says that the short order in the case of transfer of judges is disappointing. Most have focused on the transfer process being acceptable without expanding in the particular transfer to Islamabad that was carried out, how it was carried out and what aimed to achieve.
Jaferii states that the order completely ignores the transfer of judges who are expressly temporary in nature by the same language of the Constitution. It proceeds to validate such transfers in the premise that they protect themselves by needing information from within the Judiciary.
“Then it allows the president to rebuild the transfer and make clear the transfer period and the age of the judges themselves, effectively opposing the base on which the transfers were validated: that this process was within the Judiciary and isolated.”
He states that it is a Bizzare reading of a simple constitutional premise. Completely ignore the appointment scheme provided for in article 175a.
And if one told the peculiar circumstances that lead to this request, completely ignored in the majority order but expressly considered by the minority, their reasoning becomes obvious. The minority opinion, apart from the poetry of the roundabout at the end; It is constitutionally solid, “he adds.
A former law officer says that most have taken a literal vision. “It is based on the exercise of good faith oriented to good faith and the institution within the Judiciary by three main judges. If the three CJ act independently and in the interest of the institution, there should be no problem. Perhaps this was the reason why article 200 was inserted and is working well in India. But if they do not act independently, this will become an instrument of coercion and silence “
He says that, as in many recent constitutional cases, emotional defense and rhetoric continue instead of quiet and convincing arguments. It shows results every day when the judges of independent mentality have already been marginalized and unarmed. At least most have left the question of the temporary or permanent appointment. There is some contradiction, since, on the one hand, the entire exercise is within the Judiciary, but the matter has been sent only to the President. All exercise that is done again must be ordered, but now the then CJ, IHC has left. Who will give information about the temporal or permanent state of these judges, he adds.
Hafiz’s defender Ahsan Ahmad Khokhar has declared that the majority decision is constitutionally valid, well founded and aligned with the spirit and intention of the Constitution.
He stressed that the trial of the majority 3-2 rightly affirms that, according to article 200 (1) of the Constitution, such transfers are allowed with the attendance of the president, the main judges of the superior courts in question and the consent of the judges of the transferred. The Court argued that these conditions were properly met and found no bad faith by the president.
He pointed out that the president had issued a notification on February 1, 2024, under article 200 (1), transferring the Dangar Justice, Judge Sumro and Judge Muhammad Asif to the Superior Court of Islamabad. His inter-antiquity was subsequently determined by the then president of the Supreme Court Aamer Faooq on February 11, 2025. However, this age of seniority was challenged before the Supreme Court under article 184 (3).
Explaining also, he said that article 194 does not require a second oath when a judge is transferred between the higher courts, since the oath is to the Constitution itself, not for any specific court or jurisdiction. This is a recognized principle in other constitutional systems as well.
Hafiz Ahsaan added that article 200 (1) does not specify whether a transfer must be temporary or permanent. After the trial, now he falls to the president to determine the nature of the transfers. If it is considered temporary, no more antiquity determination is needed; If it is permanent, the president must determine the antiquity based solely on the original appointment dates of the judges.
He emphasized that according to article 200 (3), the terms of service of a judge cannot be negatively altered to the transfer, thus preserving its range, privileges and rights.
He also noted that the President, as indicated by the Court, must determine independently ancient times without depending on the advice of the federal government. If the President declares permanent transfers, and antiquity is based on the initial appointment, the Dogar judge may arise as the majority between three, qualifying it for his consideration as Superior Court of the Justice Court of Islamabad under article 175a through the Judicial Commission of Pakistan.
In contrast to the centralized seniority list of India, he pointed out that the Pakistan Constitution trusts each Superior Court to determine antiquity according to the initial appointment, a practice also followed in the United Kingdom, USA, UU., Canada and Australia.
Hafiz Ahsaan, while he concluded, said that sentence 3-2 is constitutionally sustainable and reinforces the legal structure under articles 200, 194 and 175a. The president’s next decision will help to shape a lasting constitutional precedent on judicial antiquity and the limits of the presidential authority in such matters.
