Can a judge be transferred from one high court to another with seniority intact?

KARACHI: Legal experts are divided over the constitutional questions that arise with the potential transfer of a judge to the Islamabad High Court (IHC), with concerns raised about the use of Article 200 of the constitution. While some argue that the process must follow strict constitutional guidelines, others question the fairness of transferring a judge with seniority intact, potentially disrupting the judicial hierarchy.

On Friday, five judges of the IHC wrote to the chief justice of the Supreme Court and the chief justices of the high courts, opposing the reported transfer of a Lahore High Court (LHC) judge to lead the IHC. The letter argues that such a transfer undermines judicial independence and violates constitutional principles.

In brief, the judges contend that high courts are independent entities, and there is no constitutional precedent for permanently transferring judges between them. They have also argued that the 26th Amendment did not institutionalise a transfer mechanism and that Article 200 of the constitution, which allows for temporary transfers with consent, has not been altered. The judges have written that a chief justice should be appointed based on seniority within the respective high court, rather than through external transfers.

At the outset, Pildat president Ahmed Bilal Mehboob says that he finds it rather surprising that the honourable judges of the IHC could write such a hard-hitting letter “merely on the basis of some speculative media reports. It also looks strange that their lordships assumed various scenarios of judicial appointments and then went on to build detailed arguments against them”.

He however also says that the argument that if Article 200 has not been used in the past, it should not be used even now seems “rather weak” and “Article 200 is a valid provision and can be used at any point” -- adding that “any use of Article 200 has to be in strict accordance with the letter and spirit of the law and any transfer must fulfil all the conditions laid down in Article 200”.

Barrister Ali Tahir weighs in on the letter by first pointing out that per the constitution, especially Article 200, “a judge of one high court can hold a temporary sitting in another high court, but this requires the consent of both chief justices of the concerned high courts as well as the chief justice of Pakistan. The judge being transferred must also give their consent. For a permanent transfer, not only does the judge being transferred have to consent, but the chief justices of both the sending and receiving high courts, along with the CJP, must also agree”.

He adds that when the proposed constitutional amendment regarding transfers was being discussed, which would have allowed the Judicial Commission to transfer any judge to another high court at will, “I had compared this to how commissioners and deputy commissioners are transferred -- a system that can be used both as a reward and as a punishment”. For Tahir, unless there is an overwhelming and far-reaching public interest, “this power should not be exercised”.

According to Hafiz Ahsan Ahmad Khokhar, a Supreme Court attorney, Article 200 gives the president the power to move a judge from one high court to another but “no high court judge can be moved without first gaining his consent, after which the president must consult with the CJP and the chief justices of both high courts”. The legal expert adds that the constitution necessitates significant consultation between the president, CJP, and the relevant high court chief justices, following the prior consent of a judge.

That said, says Khokhar, “While a chief justice of a high court may propose or suggest a judge’s transfer due to administrative reasons under Article 200, the actual transfer process is constitutionally mandated to be handled only by the president in consultation with the CJP and the other high court chief justice”. Per him, the chief justice of a high court alone cannot formally request or execute the transfer of a judge to another high court.

“The IHC judges do have valid concerns”, says Supreme Court advocate Basil Nabi Malik who adds that Article 200 of the constitution is clear. “Given that certain proposed amendments were not carried forward and incorporated into the final amendment act, it is plausible and reasonable for the IHC judges to rely on the said provision to air their apprehensions”. Malik also agrees with Barrister Tahir that the concept of consultation and consent was added “to protect against politicisation of judicial postings, and to ensure that judicial officers are not treated like bureaucrats”. According to him, “the president cannot merely shrug off or ignore the advice of the respective CJs”.

As far as history and precedent go, Khokhar says there is precedent: Justice Sardar Mohammad Aslam was transferred from the LHC to the IHC in February 2008 and he became the chief justice, Justice M Bilal Khan was transferred from the LHC to the IHC as its chief justice in 2009, and Justice Iqbal Hameedur Rehman was transferred after the re-establishment of the IHC under the 18th Amendment and was appointed as the chief justice of the IHC under Article 200.

One of the issues at the centre of the debate is the matter of seniority. So what exactly would the transferred justice be in the new high court in terms of seniority?

Barrister Tahir refers to reports that have suggested that judges are being transferred so they can carry their seniority with them and eventually become chief justice in their new high court and says he agrees with the IHC judges’ letter that when a judge takes an oath, they take it as a judge of a specific high court. Per his reading, if a judge moves to another high court, “s/he will have to take oath again. And once they take a new oath, they automatically become the most junior judge in that high court. This not only harms the judges who are already senior in that high court but also affects the incoming judge”.

Basil Nabi Malik too agrees with how the judges have read into seniority, adding that “it would create a tremendous amount of upheaval to allow a judge to be parachuted into a provincial high court from another province and that too with seniority over others”.

Regarding the letter’s interpretation, Malik says that while “on balance, reliance on Article 194 alone by the IHC judges may be somewhat tenuous, reading it with Article 200, along with the rejection of a proposed amendment providing seniority from the date of initial appointment (if the contents of the IHC judges letter is to be believed), would lend strength to the purposive interpretation offered by the IHC judges”.

On the other side though is Advocate Khokhar who says that a judge’s seniority, benefits, and privileges remain unaltered when transferred.

Eventually, says Khokhar, despite the IHC judges’ concerns, “the process will not be legally halted if all of the constitutional office-holders listed in Article 200 agree and decide, after thorough consultation, to transfer a judge from another high court to the IHC”.