Dispute over seniority of judges likely to land in Pakistan's Supreme Court

Who decides the seniority of judges in Pakistan? A dispute over the seniority of judges in the federal capital's top court is likely to end up in the Supreme Court.

It all began when outgoing Islamabad High Court Chief Justice Aamer Farooq responded to a letter from five judges challenging the seniority of three recently transferred judges. Farooq defended his decision, stating that the Constitution justified it.

"Unlike India, we do not have a transfer policy, but the country's president can affect the decision," he said.

Speaking to Nukta, Tariq Khokhar, senior lawyer and former additional attorney general, said that while the recent transfer of judges to the Islamabad High Court is legally permissible, it represents a misuse of constitutional provisions. He added that it is only a matter of time before the affected judges take their case to the Supreme Court.

Referring to India's judicial system, Khokhar noted that transferred judges retain their seniority.

Contested matter

Abdul Moiz Jaferii, another legal expert, told Nukta that Islamabad High Court judges did not expect a different response from Justice Farooq, as he had already made his position clear when he issued the seniority list, which placed Justice Sardar Sarfraz Dogar above Justice Kiyani.

"This was merely a formality on his part. The representation was obviously made with the appellate forums in mind. The Chief Justice of Pakistan has already hinted that this matter will be contested, and now we have the basis for that dispute," he said.

Jaferii further disagreed with Justice Farooq’s justification, arguing that transfers under Article 200 of the Constitution are meant to be temporary.

"The language of the article clearly envisions a temporary arrangement. The appointment of a judge to the superior judiciary is not a centralized or federal appointment akin to bureaucratic deputations. These are apex courts of provinces and cannot be subsumed into some idea of a unified judicial service," he added.

Looking toward India

"Article 222 of the Indian constitution is interestingly the only provision Justice Farooq doesn’t reproduce. He merely says it is different before using it as a reliance for his position. He is right in that it is different. The Indian allowance has no temporary scheme, requires no consent and is clearly designed to be permanent. It is irrelevant to our situation," Jaferii noted.

Meanwhile, senior lawyer Hafiz Ahsaan Khokar told Nukta that the five Islamabad High Court judges will almost certainly take the matter to the Supreme Court, where it will be heard by the newly formed constitutional bench.

He argued that Justice Farooq determined seniority in line with the Constitution, which clearly states in Articles 194, 196, and 200 that when a judge is transferred, they retain their seniority, perks, and privileges.

"In common law countries, initial appointments are always given preference. There is not a single example anywhere in the world where a judge’s seniority is disturbed or they are required to take a new oath when transferred to another high court," Khokar said.

He further emphasized that Pakistan’s Constitution requires a judge’s consent for transfer, unlike India’s, which does not demand such approval under Article 219.

"When the Supreme Court’s constitutional bench hears this case, they will consider the plain language of the relevant articles rather than any implied interpretation. This means the transferred judges' seniority will remain intact," he added.