Seven Islamabad High Court (IHC) judges have sent a letter to the Chief Justice of Pakistan (CJP) and the chief justices of other high courts. They expressed their concerns regarding media reports indicating that a judge transferred from the Lahore High Court (LHC) may be a potential candidate for the role of IHC Chief Justice.
The letter, signed by Justice Mohsin Akhtar Kayani, Justice Tariq Mehmood Jahangiri, Justice Babar Sattar, Justice Sardar Ejaz Ishaq Khan, Justice Arbab Muhammad Tahir, Justice Saman Rafat Imtiaz, and Justice Miangul Hassan Aurangzeb, highlights potential constitutional and procedural issues with such an appointment.
Context of the Controversy
The letter follows reports that Chief Justice Aamer Farooq of the IHC is under consideration for elevation to the Supreme Court. The Judicial Commission of Pakistan (JCP), which will meet on February 10, plans to select eight judges from five high courts for various appointments. Traditionally, the senior puisne high court judge assumes the chief justice role. However, the JCP introduced new rules last year, bypassing the seniority criterion after the enactment of the 26th Amendment.
The IHC judges also noted media reports suggesting the potential transfer of a judge from the Sindh High Court (SHC) to the IHC, further complicating the situation.
Constitutional and Procedural Concerns
The judges emphasized that Article 200 of the Constitution governs the transfer of judges between high courts. This article requires the President of Pakistan to consult with the Chief Justice of Pakistan and the chief justices of both high courts involved in the transfer. They referenced the Al-Jehad case, in which the Supreme Court ruled that such consultations must be “effective, meaningful, purposive, and consensus-oriented,” ensuring no room for arbitrariness or unfair practices.
The letter argued that transferring a judge from the LHC to the IHC to appoint them as chief justice would violate constitutional principles. The transferred judge would need to take a fresh oath under Article 194, and their seniority would be determined from the date of this oath. The judges stated that such a move would “undermine the spirit of the Constitution, harm the independence of the judiciary, and set a dangerous precedent.”
Legal Community’s Opposition
The legal community in Islamabad has also strongly opposed the proposed appointment. The Islamabad High Court Bar Association and the Islamabad Bar Association released a joint statement insisting that only judges from the IHC should be eligible for the chief justice role. They cautioned that nationwide protests would occur if their requests were not fulfilled.
