Pakistani justices accuse executive of violating judicial independence

Two Supreme Court justices accused Pakistan’s executive of violating the Constitution and undermining judicial independence by permanently transferring judges to the Islamabad High Court.

In a 40-page dissent released Friday, Justices Naeem Akhtar Afghan and Shakeel Ahmad said the February transfers were “tainted by mala fide in fact and law” and carried out with “unnecessary haste.”

The dissent criticizes President Asif Ali Zardari's February order transferring three provincial high court judges to the Islamabad High Court (IHC), which the Supreme Court narrowly upheld in a 3-2 split decision in June.

Justice Afghan authored the opinion, which states that the transfers violated Article 200 of the Constitution by being permanent rather than temporary, bypassed proper appointment procedures under Article 175A, and were carried out in wrong exercise of discretion.

The dissent argues the move was taken "with the motive to deprive the then Senior Puisne Judge of IHC (Mohsin Akhtar Kayani) of his appointment as Chief Justice."

Controversial transfers

The February notification transferred Justice Sardar Muhammad Sarfraz Dogar from the Lahore High Court, Justice Khadim Hussain Soomro from the Sindh High Court, and Justice Muhammad Asif from the Balochistan High Court to the IHC. The transfers altered the IHC seniority structure, with Justice Dogar (ranked 15th at his previous court) appointed as acting chief justice.

The dissent found this selection violated Article 25 of the Constitution, noting that Justice Dogar ranked 15th in seniority at Lahore, Justice Soomro ranked 20th at Sindh, and Justice Asif was an additional judge at Balochistan. Senior judges at all four high courts were bypassed, which "has frustrated the legitimate expectancy of the sitting Judges of IHC ... senior to Sardar Muhammad Sarfraz Dogar."

The transfers also "has given a serious blow to the independence of judiciary," the dissent warned, creating discord among IHC judges, disturbing working relationships, and adversely affecting court operations, "making the litigants to suffer at large."

The dissenting judges rejected the IHC's reliance on Indian legal precedent regarding seniority, noting that India maintains a unified high court seniority list while each Pakistani high court maintains separate lists.

Majority upheld action

The majority opinion, authored by Justices Muhammad Ali Mazhar, Shahid Bilal Hassan, and Salahuddin Panhwar, upheld the transfers in June, ruling that Article 200 permits such moves when judges provide written consent and proper consultation occurs.

The majority found both conditions were met and that the transfers did not constitute fresh appointments requiring approval from the Judicial Commission of Pakistan.

The dissenting judges rejected the majority's reasoning, arguing that Article 200's Clause 2 references "the period for which he serves," indicating transfers can only be temporary, not permanent. They also contended the process violated Article 175A by circumventing the Judicial Commission of Pakistan and lacked meaningful consultation since consultees were not informed about seniority consequences.

The case was initially filed by former Prime Minister Imran Khan, several bar associations, and five sitting IHC judges who boycotted Justice Dogar's oath-taking ceremony in protest.