2025 SCLR 35 (Additional Dissenting Note)

Shakeel Ahmad, J.– I have perused the reasoning authored by my learned brother, Naeem Akhter Afghan, J., for our dissenting short order dated 19.06.2025, and I supplement the same with the following additional note.

2.        These Constitution Petitions bearing Nos. 22, 20, 25 to 28, and 30 of 2025 were directly filed before this Court under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (“the Constitution”). These petitions raise significant and complex questions of constitutional importance, particularly in relation to various key concepts enshrined in the Constitution, including those having direct bearing upon the independence of the Judiciary. The matters have been argued at considerable length before us, occupying multiple hearings and encompassing a wide array of issues that touch upon nearly every imaginable aspect of the judicial institution. In addition to oral submissions, detailed written arguments have also been submitted. Numerous judicial authorities, both domestic and from comparative jurisdictions, have been cited and brought to the Court’s attention. We acknowledge with great indebtedness the learned counsel for the parties for the valuable assistance they have extended to the Court in navigating the delicate and complex issues raised in these petitions.

3.        The petitioners have challenged the constitutional validity and legal defensibility of the Notification bearing No. F.1 (2)/2024-A.II dated 01.02.2025 (“impugned notification”), issued by the Ministry of Law and Justice, Government of Pakistan. Through the impugned notification, Justice Sardar Muhammad Sarfraz Dogar (listed at Sr. No. 15 in the seniority list maintained by the Lahore High Court), Justice Khadim Hussain Soomro (listed at Sr. No. 20 in the seniority list maintained by the High Court of Sindh), and Justice Muhammad Asif, Additional Judge of the High Court of Balochistan, were transferred to the Islamabad High Court (“IHC”) (hereinafter collectively referred to as the “the transferee judges”). Since the impugned notification has formed the subject matter of heated controversy between the parties and its constitutional validity has been brought before this Court, therefore, it will be appropriate to reproduce it as under: –

GOVERNMENT OF PAKISTAN

MINISTRY OF LAW AND JUSTICE

Islamabad, the 01 February, 2025

NOTIFICATION

No.F.10(2)/2024-A.II.- In exercise of the powers conferred under clause (1) of Article 200 of the Constitution of the Islamic Republic of Pakistan, the President of the Islamic Republic of Pakistan is pleased to transfer:

(i)    Mr. Justice Sardar Muhammad Sarfraz Dogar, Judge, Lahore High Court from Lahore High Court to Islamabad High Court;

(ii)    Mr. Justice Khadim Hussain Soomro, Judge, High Court of Sindh from High Court of Sindh to Islamabad High Court; and

(iii)    Mr. Justice Muhammad Asif, Judge, High Court of Balochistan from High Court of Balochistan to Islamabad High Court

(Sd)        

(Raja Naeem Akbar)

Secretary    

        Pursuant to the impugned notification, the transferee judges complied with the transfer order and assumed charge as the Judges of the IHC. Shortly thereafter, Justice Sardar Muhammad Sarfraz Dogar was appointed as the Acting Chief Justice of the IHC by the Judicial Commission of Pakistan (“JCP”) through Notification dated 12.02.2025. Aggrieved by the impugned notification, the petitioners in Constitution Petition No.22 of 2025, five sitting judges of the IHC (“aggrieved judges”), the founder of a political party (Pakistan Tehreek-i-Insaf), Imran Ahmad Khan Niazi, as well as certain lawyers and Bar Associations, filed the present petitions, raising serious constitutional objections. It is contended firstly that the transfer order lacked the justification of public interest and the powers under Article 200 of the Constitution permit only a temporary transfer between High Courts, subject to the fulfilment of the condition of public interest as held in Al-Jehad Trust’s case1. Since the impugned notification does not reflect any such public interest, it is argued to be ultra vires. Secondly, it is asserted that the transfer was effected without meaningful or effective consultation. The summary moved by the Ministry of Law and Justice allegedly omitted material facts such as the seniority position of the transferee judges and the requirement of a fresh oath, thereby withholding critical information from the Chief Justice of Pakistan (“CJP”), the Chief Justices of the concerned High Courts, and the transferee judges themselves. Thirdly, it is contended that the “consultation” required under Article 200 (1) of the Constitution means meaningful and effective consultation. Since these preconditions were not fulfilled, the petitioners’ counsel argued that the impugned notification is constitutionally invalid and devoid of legal effect. Petition No. 22 of 2025, filed by the aggrieved judges of the IHC, was taken up as the leading petition. The other petitions, filed by the founder of Pakistan Tehreek-i-Insaf, and representatives of the legal fraternity and Bar Associations, not only assailed the validity of the impugned notification but also raised questions about the very act, the mode and manner, and the circumstances under which it was issued. The grounds raised in these petitions are substantially similar to those advanced in the leading petition.

4.        When these petitions were taken up for hearing, the learned Attorney General, appearing on behalf of the Federation, raised a preliminary objection regarding the maintainability of the petitions filed by the parties other than the aggrieved judges. He argued that these petitions lacked locus standi, as they had not sustained any legal injury as a result of the issuance of the impugned notification. According to him, since the aggrieved judges themselves have approached this Court to challenge the constitutional validity of the impugned notification, no independent cause of action existed for the remaining petitioners. He further argued that, assuming without conceding that any legal injury had occurred, it was confined solely to the aggrieved judges, who were already before the Court. Therefore, only they were competent to seek redress, and no third party could claim standing to seek relief on their behalf.

5.        Before proceeding further and examining other aspects of the case, I deem it appropriate to first address the question of locus standi of the petitioners, other than the aggrieved judges. In this context, it will be advantageous to reproduce Rule 165 of The Pakistan Legal Practitioners and Bar Councils Rules, 1976 framed under Section 55 of the Legal Practitioners and Bar Councils Act, 1973, as under: –

“165. It is the duty of advocates to endeavour to prevent political considerations from outweighing judicial fitness in the appointment and selection of judges. They should protest earnestly and actively against the appointment or selection of persons who are unsuitable for the Bench and thus should strive to have elevated thereto only those willing to forego other employments, whether of a business, political or other character, which may embarrass their free and fair consideration of the questions before them for the decision. The aspiration of advocates for judicial positions should be governed by an impartial estimate of their ability to add honour to the office and not by a desire for the distinction the position may bring to themselves.”

        A bare perusal of the above Rule reveals that Advocates are under a professional obligation to ensure that political considerations do not override judicial merit in the appointment and selection of judges. The Rule further enjoins them to actively and earnestly oppose the appointment of individuals deemed unsuitable for elevation to the Bench. It also obligates them to support the appointment of only those candidates who are prepared to relinquish any other engagements, whether business, political, or otherwise, that may compromise their ability to adjudicate freely, fairly, and independently on matters brought before them.

6.        Admittedly, the petitioners, other than the aggrieved judges, with the exception of one petition filed by the leader of a political party, are practising advocates and representatives of the legal community. In that capacity, they both are entitled and obligated to uphold democracy, the rule of law, and the independence of the Judiciary. They are also responsible for ensuring that the three organs of the State, namely the Legislature, the Executive, and the Judiciary, do not act in contravention of their constitutional or statutory duties, or neglect to perform such duties in a way that causes harm to the public interest. Such harm, referred to as public injury, is distinct from private injury. It is now well settled that every citizen of Pakistan has the right to an independent Judiciary tasked with dispensing justice in accordance with the injunctions of the Qur’an and Sunnah. This right is a fundamental one, as reflected in Articles 2A, 175, 176, 177, 192, and 199 of the Constitution, read together with Article 10 of the Charter of the United Nations, to which Pakistan is a signatory. The independence of the Judiciary is closely tied to the process by which judges are appointed and transferred from one High Court to another. If such appointments and transfers are carried out in a manner inconsistent with the Constitution or lacking public interest, it undermines judicial independence and inevitably erodes public confidence in the judicial system.

7.        Another question that arises for determination is who, in such circumstances, is competent to challenge an act or omission on the part of the State or a public functionary? Can a member of a legal fraternity or civil society approach the Court for redress? To answer this question, it will be pertinent to first determine the true nature of judicial function. S.M. Thio, in his book2 has expounded comprehensively on the judicial function. The relevant portion of the book is reproduced below:

“Is the judicial function primarily aimed at preserving legal order by confining the legislative and executive organs of the government within their powers in the interest of public (jurisdiction de droit objectif), or is it mainly directed towards the protection of private individuals by preventing illegal encroachments on their individual rights (jurisdiction de droit subjectif)? The first contention raised on the theory that the Courts are the final arbiters of what is legal and illegal. Since the dominant objective is to ensure the observance of the law, this can best be achieved by permitting any person to put the judicial machinery in motion, like the actio popularis of Roman law whereby any citizen could bring such an action in respect of a public delict. Requirements of locus standi are therefore unnecessary in this case since they merely impede the purpose of the judicial function as conceived here. On the other hand, where the prime aim of the judicial process is to protect individual rights, its concern with the regularity of law and administration is limited to the extent that individual rights are infringed, and in the absence of the latter, it does not come into play.”

        The nature and purpose of judicial functions have been correctly articulated in the referenced text. It is fundamental to the maintenance of the rule of law that every organ of the State must operate within the limits prescribed by the Constitution or law and must discharge the duties imposed upon it. Where no specific legal injury is caused to an individual or a determinate class or group, but public interest is adversely affected by an act or omission of the State or a public authority, an important question comes to the surface: who is entitled to bring an action to vindicate the rule of law, to challenge such an unlawful conduct, or to compel the performance of a public duty? If no person were permitted to seek redress in cases of public wrong or injury to collective interests, it would severely undermine the rule of law and judicial independence. Such a situation would allow public authorities to act with impunity, beyond their lawful authority or in disregard of their constitutional duties and obligations. In this context, reference may be made to the Al-Jehad Trust case (supra), in which this Court was called upon to adjudicate disputes relating to the appointment and other matters concerning Judges of the Supreme Court and the High Courts. One of the proceedings, instituted under Article 184(3) of the Constitution, involved challenges to the appointment of the acting CJP, the appointment of the Chief Justice of the High Court of Sindh as a Judge of the Federal Shariat Court of Pakistan. The other matter that came before the Court through a civil petition for leave to appeal against a judgment of a Division Bench of the Lahore High Court, whereby three constitution petitions were dismissed in limine. The issues raised in that matter included the non-confirmation of six Additional judges of the Lahore High Court, as well as the appointment of twenty Additional judges and the Acting Chief Justice of the Lahore High Court. This Court in the aforementioned case held that not only a practising advocate, but even a member of the public, has the right to ensure that the Legislature, Executive, and Judiciary act in accordance with the Constitution, particularly where public interest is affected. The fundamental rights, which are enshrined in our Constitution and also have the backing of our religion, Islam, will become meaningless if there is no independent and impartial Judiciary available in the country. The independence of Judiciary is inextricably linked and connected with the constitutional process of transferring judges from one High Court to another. Therefore, the strict requirements of locus standi in cases where public interest is at stake and constitutional norms are allegedly compromised become less important and must yield to the broader objective of upholding the Constitution. In contrast, when the primary purpose of the judicial process is to safeguard individual rights, its focus on the legality of administrative actions is confined to instances where those rights are directly violated. Furthermore, this Court has consistently adopted a liberal approach to locus standi in matters involving public interest and fundamental rights. In Multilines Associates’ case3, it was held that the requirement of standing may be relaxed in public interest litigation. In the case of Wukla Mahaz4, the Court reaffirmed that Article 184(3) does not require an “aggrieved person”, but only the involvement of a fundamental right and a question of public importance. This principle was foundationally established in Benazir Bhutto’s case5, where the Court recognized public interest litigation and held that any bonafide individual may approach the Court on behalf of a group or class unable to do so themselves.

8.        A plain reading of Article 9 of the Constitution reveals that it guarantees that the citizens shall not be deprived of life or liberty except in accordance with law. The right of access to justice is inherently encompassed within this protection. In Sharaf Faridi’s case6, Saleem Akhtar, J. affirmed this principle, a view later reiterated by this Court in the Government of Balochistan7. It was observed:

The right of “access to justice to all” is a well-recognised inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of “due process of law”. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial, and a right to have an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby in Constitution of United States, Second Edition, Vol. II at page 1709 where the term “due process of law” has been summarized as follows:

(1)    He shall have due notice of proceedings which affect his rights.

(2)    He shall be given reasonable opportunity to defend.

(3)    That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and

(4)    that it is a Court of competent jurisdiction.”

It therefore follows that in terms of Article 9 of the Constitution, a person is entitled to have an impartial Court and tribunal. Unless an impartial and independent Court is established the right to have a fair trial according to law cannot be achieved. Therefore, justice can only be done if there is an independent Judiciary which should be separate from Executive and not at its mercy or dependent on it”

9.        In the light of the discussion made hereinabove, I hold that the petitioners in these cases, including practicing lawyers, advocates, and the founder of a political party, Imran Ahmad Khan Niazi, have the requisite locus standi to maintain these petitions. This holds true notwithstanding the fact that the aggrieved judges have filed a separate petition, as the constitutional questions raised herein pertain to matters of significant public importance involving the functioning of the Judiciary as an independent organ of the State and the preservation of its institutional integrity.

10.        Now, adverting to the constitutional validity and legal defensibility of the impugned notification, whereby judges from Lahore, Sindh, and Balochistan High Courts were transferred to the IHC. It must be emphasised here that the permanent transfer of judges from one High Court to another, against permanent vacancies, is a matter of serious constitutional concern. It is the Judiciary which is vested with the critical responsibility of ensuring that every organ of the State operates within the bounds of law, thereby upholding and giving practical effect to the rule of law. To fulfil this role, the Judiciary must be insulated from any form of Executive pressure or influence. The framers of the Constitution have recognised this necessity and have, therefore, embedded within the constitutional framework elaborate safeguards to protect judicial independence. It is of utmost importance to remind ourselves that the concept of independence is not confined merely to freedom from Executive interference. It is a far more comprehensive, encompassing immunity from all forms of pressure, whether political, economic, social, or ideological. It also includes freedom from biases that may arise from the background, class, or other such affiliations that the judges themselves may have. The independence of the Judiciary stands as the cornerstone of our constitutional order. It must be a body well-structured, resolute, and responsive while being equipped to swiftly address public grievances and to dispense justice with courage, clarity, and unwavering impartiality. An efficient and impartial Judiciary nurtures a legal environment where peace prevails, rights are safeguarded, and justice knows no bias of caste, creed, colour, culture, or gender. Such an environment not only upholds the dignity of individuals and groups but also lays down the foundation for sustained economic progress and social development, as recognised in Zafar Ali Shah’s case8.

11.        Allah the Almighty has ordained that justice be rendered regardless of the status of the parties. In Surah Al-Nisa, the Holy Qur’an says: –

O believers! Stand firm for justice as witnesses for Allah even if it is against yourselves, your parents, or close relatives. Be they rich or poor, Allah is best to ensure their interests. So do not let your desires cause you to deviate ˹from justice˺. If you distort the testimony or refuse to give it, then ˹know that˺ Allah is certainly All-Aware of what you do.

(4:135)

        Similarly, in Surah Al-Maida, the Holy Qur’an provides that:

O believers! Stand firm for Allah and bear true testimony. Do not let the hatred of a people lead you to injustice. Be just! That is closer to righteousness. And be mindful of Allah. Surely Allah is All-Aware of what you do.

(5:8)    

        In the same Surah, the Holy Quran further provides that:

“Indeed, We revealed the Torah, containing guidance and light, by which the prophets, who submitted themselves to Allah, made judgments for Jews. So too did the rabbis and scholars judge according to Allah’s Book, with which they were entrusted and of which they were made keepers. So do not fear the people; fear Me! Nor trade my revelations for a fleeting gain. And those who do not judge by what Allah has revealed are ˹truly˺ the disbelievers.”

(5:44)

        In Surah Al-Nisa, Allah the Almighty has ordained us not to advocate for the deceitful in the following words:                    

“Surely, we have revealed the Book to you with truth so that you may judge between people by means of what Allah has taught you. And be not one pleading the cause of the dishonest.”

(4:105)

        Furthermore, in Surah Sad, Allah the Almighty instructs those in the position of authority to judge without being swayed by personal desires:

“We instructed him: “O David! We have surely made you an authority in the land, so judge between people with truth. And do not follow ˹your˺ desires or they will lead you astray from Allah’s Way. Surely those who go astray from Allah’s Way will suffer a severe punishment for neglecting the Day of Reckoning.”

(38:26)

12.        At this juncture, it would also be advantageous to quote the words of Justice V.R Krishna Iyer as under:

“The independence of judiciary is not genuflexion; nor is it opposition to every proposition of government. It is neither judiciary made to opposition measures nor government’s pleasure.”

13.        Judges must be tempered from resilient will and unwavering integrity, for upon their shoulders rests the duty of upholding the rule of law, an unbending doctrine under which no one, however exalted, stands above the law. This principle is not merely symbolic; rather, this lies at the heart of judicial independence, which sustains participatory democracy, preserves the rule of law as an evolving ideal, and ensures that justice reaches those most in need of it. In interpreting the Constitution in its true spirit, a duty woven into the very fabric of our judicial robes, we must remain anchored to the principle of judicial independence. Before dilating upon the scope of existing Article 200 of the Constitution, which relates to the transfer of High Court judges, I would like to go through the progressive development of the said Article. In the Constitution of the Islamic Republic of Pakistan, 1956, the relevant Article which dealt with the transfer of judges of High Courts was Article 172, which is as follows: –

“172. Transfer of High Court Judges. (1) The President may transfer a Judge of a High Court from one High Court to the other High Court, but no such Judge shall be transferred except with his consent and after consultation with the Chief Justice of Pakistan and the Chief Justice of the High Court of which he is a Judge.

(2) When a Judge is so transferred, he shall during the period for which he serves as a Judge of the High Court to which he has been transferred, be entitled to such compensatory allowance, in addition to his salary, as the President may by order determine”. (Underlined for emphasis)

        Similarly, in the Constitution of Islamic Republic of Pakistan, 1962, the relevant Article which dealt with the transfer of judges of High Court was Article 99, which contained the same language as contained in Article 172 of its predecessor Constitution with changes requiring consultation with CJP and Chief Justices of both the High Courts. The said Article is reproduced below: –

“99. Transfer of High Court Judges. (1) The President may transfer a Judge of a High Court from one High Court to the other High Court, but no such Judge shall be so transferred except with his consent and after consultation with the Chief Justice of the Supreme Court and the Chief Justices of both High Courts.

(2) When a Judge is so transferred, he shall during the period for which he serves as a Judge of the High Court to which he is transferred, be entitled to such compensatory allowance, in addition to his salary, as the President may, by Order determine”. (Underlined for emphasis)

        The Constitution of the Islamic Republic of Pakistan, 1973, made substantive additions to the existing Article relating to the transfer of judges of High Courts through Article 200. The said Article 200, as it existed before the 18th Constitutional Amendment, for ready reference, is reproduced below:

“200.- Transfer of High Court Judges. (1) The President may transfer a Judge of a High Court from one High Court to another High Court, but no Judge shall be so transferred except with his consent and after consultation by the President with the Chief Justice of Pakistan and the Chief Justices of both High Courts:

Provided that such consent, or consultation with the Chief Justices of the High Courts, shall not be necessary if such transfer is for a period not exceeding two years at a time.

Explanation.- In this Article, “Judge” does not include a Chief Justice but includes a Judge for the time being acting as Chief Justice of a High Court other than a Judge of the Supreme Court acting as such in pursuance of a request made under paragraph (b) of Article 196.

(2)    Where a Judge is so transferred or is appointed to an office other than that of Judge at a place other than the principal seat of the High Court, he shall, during the period for which he serves as a Judge of the High Court to which he is transferred, or holds such other office, be entitled to such allowances and privileges, in addition to his salary, as the President may, by Order, determine.

(3)    If at any time it is necessary for any reason to increase temporarily the number of Judges of a High Court, the Chief Justice of that Court may require a Judge of any other High Court to attend sittings of the former High Court for such period as may be necessary and, while so attending the sittings of the High Court, the Judge shall have the same power and jurisdiction as a Judge of that High Court:

Provided that a Judge shall not be so required except with his consent and the approval of the President and after consultation with the Chief Justice of Pakistan and the Chief Justice of the High Court of which he is a Judge.

Explanation.- In this Article, “High Court” includes a Bench of a High Court.

(4)    A Judge of a High Court who does not accept transfer to another High Court under clause (1) shall be deemed to have retired from his office and, on such retirement, shall be entitled to receive a pension calculated on the basis of the length of his service as Judge and total service, if any, in the service of Pakistan.”    (Underlined for emphasis)

        The underlined proviso to clause (1) of Article 200 was added and further amended to forego the condition of consent or consultation provided that the period of transfer did not exceed two years, however the said proviso was omitted by Constitution (Eighteenth Amendment) Act, 2010 (Act X of 2010) which exhibits extensively that the conditions of consent and consultation are not just formalities rather substantive requirements which have direct bearing on independence of Judiciary. Similarly, throughout this journey, two terms remained unchanged, i.e., “consent and after consultation” and “during the period”. It is with this background that I now turn to consider the meaning and scope of Article 200 of the Constitution, which, for ready reference, is reproduced below:

200. (1) The President may transfer a Judge of a High Court from one High Court to another High Court, but no Judge shall be so transferred except with his consent and after consultation by the President with the Chief Justice of Pakistan and the Chief Justices of both High Courts.

Explanation.—In this Article, “Judge” does not include a Chief Justice, but includes a Judge for the time being acting as Chief Justice of a High Court other than a Judge of the Supreme Court acting as such in pursuance of a request made under paragraph (b) of Article 196.

(2)    Where a Judge is so transferred or is appointed to an office other than that of Judge at a place other than the principal seat of the High Court, he shall, during the period for which he serves as a Judge of the High Court to which he is transferred, or holds such other office, be entitled to such allowances and privileges, in addition to his salary, as the President may, by Order, determine.

(3)    If at any time it is necessary for any reason to increase temporarily the number of Judges of a High Court, the Chief Justice of that Court may require a Judge of any other High Court to attend sittings of the former High Court for such period as may be necessary and, while so attending the sittings of the High Court, the Judge shall have the same power and jurisdiction as a Judge of that High Court:

Provided that a Judge shall not be so required except with his consent and the approval of the President and after consultation with the Chief Justice of Pakistan and the Chief Justice of the High Court of which he is a Judge.

        A plain reading of Article 200 (1) of the Constitution reveals that while the President is empowered to transfer a judge from one High Court to another, such a transfer is conditional upon two critical safeguards: (i) the consent of the judge concerned and (ii) mandatory consultation with the CJP and the Chief Justices of the respective High Courts. These requirements can in no way be interpreted as mere formalities rather, they are bulwarks present to preserve judicial independence and institutional integrity. It is significant to further note that Article 200 of the Constitution itself does not prescribe any duration for such a transfer. However, this silence does not imply permanence. Rather, the cumulative effect of the concerned judge’s consent and the consultative process points towards a temporary and mutually agreed arrangement. This interpretation finds further support in clause (2) of Article 200 of the Constitution, which was substituted by the President’s Order No. 14 of 1985. According to the said clause, the period during which a judge serves at the transferee High Court or holds any other designated office, he shall be entitled to such allowances and privileges as the President may determine. It is this very juncture at which multiple interpretations have been put forth to us. However, the employment of the phrase “during the period”, which remained unchanged throughout all Constitutional amendments, highlights a time-bound framework, suggesting that the transfer bears no permanence, even in the absence of a maximum duration. Clause 3 of Article 200 of the Constitution, which was introduced through the Constitution (First Amendment) in 1974, allows the Chief Justice of a High Court to temporarily increase the number of judges by requiring a judge from another High Court to attend its sittings. During this period, the judge exercises the same powers as a regular judge of that High Court. The explanation added by President’s Order No. 14 of 1985 clarifies that the term “High Court” also includes its Benches.

14.        In the Al-Jehad Trust case (supra), this Court stressed that any transfer of a Judge from one High Court to another must be justified by considerations of public interest. In examining the present matter, I considered the matter by formulating the following questions:

(i)    Is the power of the President under Article 200 of the Constitution unfettered?

(ii)    What are the conditions for the exercise of such powers, and have these conditions been fulfilled?

(iii)    What is the scope and nature of consultation as envisaged by Article 200 of the Constitution?

(iv)    Whether all the relevant facts were placed before the CJP and both the Chief Justices of the High Courts for consideration, when they were consulted, and, therefore, an inescapable conclusion could be drawn that transfer order for want of consultation as required by the Constitution is void and outcome of mala fide?

(v)    Whether the impugned transfers were made in public interest and in good faith; and whether the impugned transfers lacks fairness?

(vi)    Whether the impugned transfers were selective transfers?

        The initiation of the proposal for the transfer of a judge of a High Court must originate from the President alone. This requirement assumes greater significance in cases like the present one, as Article 200 of the Constitution then expressly mandates consultation with the CJP and the Chief Justices of both the transferee and receiving Courts. The CJP and the Chief Justices of the High Courts owe a duty both to the President and the judges concerned. Thus, if they consider it necessary to examine any further material facts, they are well within their rights to seek clarification from the President. In its truest essence, what Article 200 of the Constitution demands is consultation, not concurrence with the CJP and Chief Justices of the High Courts, enabling the President to arrive at an independent decision, but normally, the opinion of the CJP and Chief Justices of the concerned High Courts should be accepted by the President. However, the term “consultation” under Article 200 of the Constitution must be understood to mean an exercise that is effective, meaningful, purposive, and aimed at consensus. It must not be reduced to a mere formality or exposed to any arbitrariness. In the present matter, this essential requirement is found wanting due to the concealment of material facts, particularly those concerning seniority and the issue of fresh oath in the summary moved to the CJP and Chief Justices of the concerned High Courts. This Court has emphasized that the power to transfer cannot be invoked by the President or the Executive for any purpose other than that of the public interest, in the course of which consultation still remains mandatory. It is therefore imperative that, during such consultation, all relevant facts and data are placed before the CJP and Chief Justices of the concerned High Courts by the President or the Executive. Only then can they offer the benefit of their informed and objective opinions to the President. If necessary facts are withheld, the constitutional purpose of consultation is frustrated, and the process stands vitiated. Therefore, the President bears a constitutional obligation to disclose all material facts necessary to facilitate an informed, fair, and meaningful consultation. The failure to do so, as evident in the instant matter, amounts to a violation of Article 200 (1) of the Constitution. As such, it can be safely concluded that effective and meaningful consultation with the CJP and the relevant Chief Justices did not take place, thereby rendering the impugned notification a nullity in the eyes of law. Furthermore, as held in Al-Jehad Trust’s case (supra), the power of transfer must not be misused as a tool for punishment or any extraneous purpose. The facts and circumstances of the present matter strongly suggest that the impugned transfer was driven by oblique considerations rather than any legitimate public interest. Thus, the power vested in the President, acting on the advice of the Prime Minister, to transfer a judge of a High Court under Article 200 of the Constitution is not an unfettered discretion. It is a solemn responsibility to be exercised only when the circumstances reasonably warrant such an action in the public interest. The authority is not to be wielded for reasons of convenience, administrative strategy, or to cloak disciplinary motives in the garb of routine administrative action. No robe shall be shifted under shadow or suspicion. Where the cause is just and reasonable, such as importing judicial or better talent, deploying expertise in a specialised branch of law, not locally available, guarding impartiality from local entanglements, balancing judicial strength across the provinces, or furthering the ideal of national cohesion, a transfer may be contemplated. But even then, the flame of public interest must burn clearly, for it lights the path under Article 200 of the Constitution. The transfer under Article 200 of the Constitution must not be seen as punitive in nature, nor should it be viewed as undermining the independence of the Judiciary. The transfer of a judge, when made in accordance with law, is a recognised aspect of judicial service and does not in itself carry any adverse implication. However, given the exceptional nature of this power, its exercise must be aided by clear reasons, procedural transparency, and adherence to the constitutional requirements as set forth in Article 200 of the Constitution. The onus lies squarely on the State to justify that the conditions laid down therein had been duly satisfied. A combined reading of Clauses (1) and (2) of Article 200 of the Constitution makes it evident that a judge cannot be transferred permanently from one High Court to another. Under Section 3 of the Islamabad High Court Act, 2010 (“the Act”), the permanent strength of the IHC is prescribed. The object of proportionate representation of all the Provinces in the IHC in terms of the Act could have easily been achieved by making fresh appointments of the judges from the Provinces by the JCP by invoking provisions of Article 175-A of the Constitution as Rule 6 of the JCP (Appointment of Judges), Rules, 2024 makes it obligatory upon the members of the JCP to ensure proper diversity in terms of region as well as gender and religion, subject to fulfilment of laid down criteria. Even if it is argued that a transfer is required in the interest of national integration, it must not come at the expense of judicial independence, which is a core constitutional value and a matter of the highest public interest. Where a conflict arises between these two considerations, the principle of judicial independence must prevail over the amorphous consideration of national integration. The judicial role is fundamentally different from ordinary public service. A judge does not serve under the government in the traditional sense. There is no master-servant relationship. Judges are not bound to follow Executive directives in deciding cases, and even superior courts generally only correct judges of subordinate courts through judgments and not by issuing commands. In this context, the meaning of “transfer” under Article 200 of the Constitution must be distinguished from how transfers are understood in general civil service. It must be interpreted in harmony with other constitutional provisions, particularly those designed to safeguard judicial independence. A permanent transfer from one High Court to another, if made ignoring the provisions of Article 175A of the Constitution, which provides a complete procedure for the appointment of permanent judges of the High Court, would render Article 175A of the Constitution redundant. This has never been the intention of the drafters of our Constitution or the Legislature. To permit such a practice is to place in the hands of the Executive a lever by which any judge who resists its pull, or falls from its grace, may be displaced, a prospect that strikes at the very heart of judicial independence. The learned Attorney General did not dispute the centrality of preserving judicial independence. He, however, contended that the word “transfer” in Article 200 of the Constitution permits permanent transfer, so long as the conditions set out therein are satisfied. He further argued that because a judge being transferred does not undergo a fresh appointment process, there is no requirement for the judge to take a fresh oath

15.        The sheet anchor of Mr. Muneer A. Malik, ASC, is that judicial independence is a cardinal feature of our Constitution, safeguarded through multiple provisions aimed at protecting the Judiciary from Executive influence. He argued that allowing permanent transfer of High Court judges would seriously undermine this independence and strip constitutional protections of their true purpose. According to the counsel, transfers must be consensual, not compelled, or to punish the judges of the transferee High Court. Indeed, the Constitution reflects deep legislative concern for judicial independence, with extensive debate devoted to secure it. For the Judiciary to remain above reproach, its judges must be free from political pressure and of impeachable integrity

16.        The Constitution envisions the Judiciary as the sentinel of citizens’ rights and liberties, an institution immune from Executive influence and interference. To give this vision concrete form, the Legislature has embedded within the constitutional framework several provisions to secure and safeguard judicial independence. Article 2-A and 175 of the Constitution affirm this principle, while the oath required under Articles 178 and 195 of the Constitution read with the Third Schedule, administered to every Chief Justice of the Supreme Court and judges, and Chief Justice and judges of High Courts, binds them to discharge their duties “without fear or favour, affection or ill-will”. This reinforces the legislative intent to achieve an impartial Judiciary. Yet these words risk becoming hollow if the Executive retains the power to reward or injure a judge through permanent transfer. The permanent transfer of a judge from one High Court to another, particularly when it disrupts established seniority in the transferee court, amounts not only to a personal injury to the judges of such court but also a structural threat to judicial independence. Each High Court in Pakistan is constitutionally distinct and independent of another, headed by its own Chief Justice and governed by its own seniority list. To conflate them, or allow one to override the other, is to blur these foundational distinctions. This, too, reinforces that any transfer under Article 200 of the Constitution is not meant to be permanent, for permanence in this context would subvert both structure and spirit.

17.        Although the transferee judges were transferred to the IHC with their consent, they were initiated by the Executive/Ministry of Law and Justice on grounds unrelated to any discernible public interest, that too without disclosing the necessary facts, i.e., issues of fresh oath and seniority of the transferee judges. A perusal of the summary moved by the Ministry of Law and Justice, seeking the transfer of judges from Lahore and Sindh High Courts to IHC, reveals that the entire process was completed in an unusually short span of five days. The speed of these actions, coupled with the absence of essential information, does raise significant concerns. Notably, the summary failed to address the implications of seniority and the requirement of a fresh oath for the transferee judges. This omission suggests that complete and accurate information was not placed before the CJP, the Chief Justices of the respective High Courts, or even the transferee judges themselves. Such concealment points toward a mala fide intent, possibly to marginalise the senior-most judges of the IHC, influence its institutional composition, or manipulate the process of appointing its Chief Justice. This transfer had a direct bearing on the seniority list and the composition of the IHC’s Administrative Committee, both central in upholding judicial integrity. In my view, the deliberate withholding of information relating to seniority and oath-taking requirements amounts to a violation of the rule of fairness and undermines the principles of transparency and judicial independence. Public authorities, in the discharge of their official duties, are bound to act fairly and justly, a principle firmly upheld by this Court in the cases of Messers Airport Support Services9 and Ikram Bus Service10, which elaborated the contours of procedural fairness. At this point, it is helpful to revisit the principles outlined by Lord Mustill in Doody’s case11, which serve as a foundation for understanding the requirements of fairness:

1.    Where an Act of Parliament confers an administrative power, there is a presumption that it will be exercised in a manner which is fair in all the circumstances.

2.    The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type.

3.    The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.

4.    An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.

5.    Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.

6.    Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.

        The manner in which the transfers were carried out reflects a mala fide exercise of authority, one seemingly intended to dilute the independence of the IHC and reshape its composition. Crucial aspects, such as the implications for seniority and the requirement of a fresh oath, were not transparently presented to the CJP and concerned Chief Justices of the High Courts during the consultation process. Furthermore, the selection of the judges for the transfer itself raises legitimate concerns. Justice Sardar Muhammad Sarfraz Dogar ranked 15th in the seniority list of the Lahore High Court; Justice Khadim Hussain Soomro stood 20th in the High Court of Sindh; and Justice Muhammad Asif was serving as an additional judge in the High Court of Balochistan. Yet, there is no material on record to depict whether senior judges of these courts were offered a transfer to the IHC, or whether they declined or withheld consent, and that only after this exercise, the transferee judges were so selected for transfer. Lack of this exercise clearly suggests that the impugned transfers are selective transfers, made with ulterior motive and mala fide intentions. In one instance, the summary proposing Justice Soomro’s transfer cited the need for “representation from Rural Sindh”, a rationale rightly objected to by the Chief Justice of the High Court of Sindh, as such a ground for transfer is wholly alien to the Constitution. Further, it is observed with great pain that vide a letter dated 01.02.2025, the Secretary, Ministry of Law and Justice, not only forwarded the completed summary to the Prime Minister but on his own accord and unilaterally opined on the seniority and oath status of the transferee judges, a matter clearly beyond his remit. When the learned Attorney General was asked to explain whether there was any hindrance to fill permanent vacancy(ies) of judge(s) in the IHC by adopting the procedure incorporated in Article 175-A of the Constitution read with Section 3 of the Act of 2010, he remained answerless. Taken together, these events reveal a troubling pattern of rushed decision-making, selective disclosure, and undue interference. The process, stripped of transparency and fairness, appears to have served an ulterior purpose, one that compromised the independence and internal balance of the IHC.

18.        Last but not least, the transfers of judges to the IHC under Article 200(1) of the Constitution have raised serious legal concerns. These actions, carried out in apparent disregard of established judicial norms, undermined the legitimate expectations of senior judges of the IHC, particularly their prospects for appointment as Chief Justice or elevation to the Supreme Court. This not only posed a threat to judicial independence but also revealed a procedural irregularity.

19.        In relation to the contention raised by the learned counsel for petitioners that the impugned transfers were prompted due to a written complaint submitted by five sitting judges of the IHC to the then CJP, in his capacity as the Chairman of the Supreme Judicial Council, concerning interference in judicial affairs and alleged threats from intelligence agencies, this argument does not appeal to me, as the intelligence agencies have no constitutional role in matters pertaining to the appointment or transfer of judges. It is further observed that the Armed Forces, under the oath prescribed by Article 244 read with the Third Schedule of the Constitution are bound to bear true faith and allegiance to Pakistan and to uphold the Constitution, which embodies the will of the people. Each member affirms that they shall serve Pakistan honestly and faithfully in the Army, Navy, or Air Force, in accordance with law. This oath imposes a binding obligation to refrain from any political involvement. In addition, Article 245(1) of the Constitution makes it clear that the Armed Forces are to act under the direction of the Federal Government to defend Pakistan against external aggression or threat of war, and, subject to law, to act in aid of civil power when called upon to do so. Any conduct contrary to these constitutional obligations would amount to a breach of their oath and a deviation from the role envisaged for them by the Constitution.

20.        As for the issues concerning the seniority and administration of oath to the transferee judges, I deem it not necessary to dilate upon the same in view of the fact that the impugned notification has already been declared ultra vires the Constitution by my brother Naeem Akhter Afghan, J., and me. Accordingly, I consider it appropriate to leave these questions open to be addressed in a more suitable case, should the need arise.

21.        I would conclude by recalling the memorable words of Lord Pearce in the case of Liyanage12 where he cautioned that:

“If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges…What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances.”

        I am mindful that I am not adjudicating upon the vires of Article 200 of the Constitution, nor indeed could I do so. Yet, I have invoked the above passage to emphasize the gravity of the warning contained in the words: “what is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances.” If the Constitution permits a course of action, it must prevail; we cannot interdict it. But, if such a course can be restrained through the established canons of construction and interpretation of the Constitution, then we shall be derelict in our duty if we fail to do so. In the larger interest of our country, in fidelity to the rule of law, and in unwavering defence of constitutionalism, it is our bounden obligation to ensure that transient convenience does not become a precedent for permanent erosion.

1. Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324)

2. Locus Standi and Judicial Review by S.M Thio.

3. Multilines Associates v. Ardeshir Cowasjee (PLD 1995 SC 423)

4. Wukla Mahaz Barai Tahafuz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263).

5. Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

6. Sharaf Afridi v. the Federation of Islamic Republic of Pakistan (PLD 1989 Karachi 404)

7. Govt. of Balochistan v. Aziz Ullah Memon (PLD 1993 SC 341)

8. Zafar Ali Shah v. Pervez Musharraf (PLD 2000 SC 869)

9. Messers Airport Support Services v. The Airport Manager Quaid-e-Azam International Airport, Karachi & others (1998 SCMR 2268)

10. Ikram Bus Service and others v. Board of Revenue, West Pakistan & others (PLD 1963 SC 564)

11. Doody v. Secretary State for Home Department (1993) 3 All ER R 92, 106

12. Don John Francis Douglas Liyanage & Others v. The Queen ([1967] 1 AC 259)