Courting crises

Can a judge from one high court be transferred to another in a manner that allows them to bypass the seniority principle and assume the position of chief justice? This seems to be the main question – and point of contention – in the brand new chapter in the ongoing saga that is the superior judiciary’s internal divide. The latest is a letter penned by five judges of the Islamabad High Court (IHC) against the proposed transfer of a Lahore High Court (LHC) judge to lead the IHC. Needless to say, much ink and air time has been devoted now to this new – but also eternally old, it seems – debate on judicial independence and constitutional propriety. The judges’ letter, addressed to the chief justices of the Supreme Court and high courts, raises serious concerns regarding the transfer. Traditionally, the senior puisne judge of a high court is elevated to the chief justice position, ensuring continuity, institutional integrity, and respect for seniority. However, the Judicial Commission of Pakistan (JCP) introduced new rules last year allowing for a broader panel of five senior-most judges to be considered for the post. While this amendment is aimed at flexibility, it does not, as the judges argue, justify transferring a judge from another high court to circumvent established norms.

For many legal experts, the judges’ objections rest on firm constitutional and historical grounds. They assert that the high courts are independent and autonomous entities and that the passage of the 26th Amendment did not institutionalise a transfer mechanism for high court judges, and Article 200, which allows transfers with a judge’s consent and the requisite consultations, has not been amended to facilitate such permanent appointments. Beyond the legal framework, the transfer raises significant concerns about the potential erosion of judicial independence. The judges argue that allowing such a transfer could set a dangerous precedent, enabling external influences to shape the leadership of a high court. The possibility of appointing a judge from outside the court’s existing hierarchy could foster perceptions of favouritism, manipulation, or executive overreach.

The government’s line hinges on the argument that Article 200 is a valid constitutional provision that allows for judicial transfers. However, constitutional experts remain divided on whether such a transfer, particularly it it were to lead to an immediate ascension to the chief justice position, aligns with the principles of judicial independence and established norms. This is just another example of the ongoing mess that the judicial appointment system is becoming, something that can seriously undermine public confidence in the judiciary. Judicial appointments must be insulated from interference and adhere to the well-established norms that have historically preserved the credibility of Pakistan’s judiciary. That said, while judicial independence is paramount, judges must also consider whether public airing of internal disputes through letters and open statements is the best way forward. The spate of letters in the past few months, while perhaps drawing attention to genuine concerns, risks deepening divisions and politicising judicial matters in a way that may not serve the institution well. There must be a more structured and dignified approach to addressing such grievances – one that upholds the judiciary’s integrity without turning its internal conflicts into a matter of public spectacle.