Constitution doesn’t empower president to appoint judges, SC told

ISLAMABAD: The Supreme Court was told on Tuesday that the Constitution does not empower the president to appoint judges under Article 175-A but only the Judicial Commission of Pakistan (JCP) can do that.

A five-member Constitutional Bench of the apex court, headed by Justice Muhammad Ali Mazhar, heard identical petitions challenging the transfer of judges from various high courts to the Islamabad High Court (IHC). Other members of the bench were Justices Naeem Akhtar Afghan, Shahid Bilal, Shakeel Ahmed and Salahuddin Panhwar.

Munir A Malik, counsel for the six IHC judges, while commencing his arguments submitted that prior to the recent transfers, five positions for judges in the high court were vacant.

He submitted that Article 200 of the Constitution did not empower the president to appoint judges under Article 175-A of the Constitution but only the JCP can make such appointments.

“It is settled in the rules and Constitution that only the JCP can recommend the appointment of judges on seats fallen vacant,” Malik contended, adding that the Constitution has laid down complete procedure in this regard. “Permanent judges cannot be appointed without this commission,” he contended.

On Tuesday, Munir A Malik argued that Article 200 of the Constitution refers to temporary transfers, and he would begin by citing provisions from previous constitutions.

He explained that the Government of India Act 1935 had no clause on judges’ transfers, adding that the 1956 Constitution included a clause allowing the president to transfer judges with the consultation of chief justices of both high courts.

The counsel submitted that under the 1962 Constitution, transfers were also temporary. Article 202 of the 1973 Constitution allowed the president to determine the term and privileges of transferred judges.

Malik further submitted that after the 18th Constitutional Amendment, transfers under Article 200 could only be temporary. He added that Article 200(2) supports this and that the 26th Amendment did not alter it. He pointed out that under the Government of India Act 1935, transferred judges had to take an oath before assuming office, and this requirement remains unchanged.

The counsel emphasized that Article 200 must be interpreted in conjunction with Articles 2A and 175A, which affirm judicial independence and set rules for judicial appointments. He contended that amendments made in 1976 and 1985 adjusted the maximum duration for transfers to one and then two years, respectively.

“Initially, transfers required a judge’s consent, but in 1985, this was removed,” Malik submitted, adding that a clause was also added stating that refusal to accept a transfer would lead to the judge being considered retired.

The counsel further submitted that judicial transfers must serve the public interest and cannot be used as a punitive measure.

Justice Shahid Bilal Hassan asked the counsel about the typical duration of temporary transfers. Malik replied that constitutional history shows the term to be two years.

Justice Mazhar countered that the current Constitution does not specify a term, which could imply an indefinite period. Malik, however, responded that in the absence of consent, the two-year limit should apply. The counsel submitted that prior to the recent transfers, five positions for judges in the IHC were vacant.

Meanwhile, Justice Mazhar remarked that the bench had agreed not to ask questions during Malik’s arguments and would hold a Q&A session afterward. He asked Malik if he had filed his reply in the matter in hand to which the counsel replied that he had not but would do so after consulting his clients.

Later, the court adjourned the hearing until today (Wednesday) wherein Malik would continue his arguments.