Recently, the President has enacted the transfer of three judges from various high courts to the Islamabad High Court, prompting the legal community to declare a strike in protest of this action. However, this raises an important question: Is any constitutional or legal dilemma associated with the President’s decision? The resounding answer is that the decision is both constitutional and lawful.
Firstly, we need to explore the proper procedure for appointing judges to the Islamabad High Court. It is essential to grasp the legal guidelines that govern this process. Pursuant to Section 3 of the Islamabad High Court Act of 2010, “The Islamabad High Court shall comprise a Chief Justice and twelve other judges, appointed from the provinces and other territories of Pakistan in accordance with the Constitution.”
42 out of Justice Dogar’s 59 judgments have gained recognition as international precedents, highlighting their significance and influence on the global legal landscape.
Next, can the President relocate a judge from one High Court to another? The response is found in Article 200 of the Constitution, which stipulates: “The President may transfer a judge of a High Court from one High Court to another; however, no judge shall be transferred without their consent, and only after the President consults with the Chief Justice of Pakistan and the Chief Justices of both High Courts.”
The President’s power to transfer a judge hinges on two critical conditions:
1. The judge’s consent.
2. Consultation with the Chief Justice of Pakistan and the Chief Justices of the respective High Courts.
In this instance, both requirements have been met. The necessary consent from the judges involved has been secured, and the decision was made following consultations with the appropriate Chief Justices.
Now that we’ve examined the legal framework, let’s review historical precedents concerning the appointment of judges in the Islamabad High Court (IHC). This is not an isolated occurrence; judges from other High Courts have been transferred to the IHC previously. Noteworthy instances include:
– Justice Sardar Muhammad Aslam was a judge in the Lahore High Court when he was transferred to the Islamabad High Court in 2008, where he eventually served as Chief Justice.
– Justice M. Bilal Khan was a Justice at the Lahore High Court and was transferred to the IHC in 2000, where he also served as Chief Justice.
– Justice Iqbal Hameed-ur-Rehman was transferred to the IHC from the Lahore High Court and later retired as Chief Justice of the Islamabad High Court.
When transfers involved three Chief Justices of the Islamabad High Court from the Lahore High Court in the past, what issue arises with further transfers?
Justice Sarfraz Dogar stands out as an individual of integrity, dedicated to maintaining the rule of law. There appears to be no valid justification for subjecting him to any scandal or controversy. Indeed, 42 out of his 59 judgments have gained recognition as international precedents, highlighting their significance and influence on the global legal landscape. Additionally, his academic credentials are firmly established, and he faces no unresolved questions surrounding allegations of dual nationality, which can tarnish the images of legal professionals.
Legal ethics further come into play: Should Bar Councils and Bar Associations contest a Presidential decision that is entirely consistent with legal and constitutional guidelines? Should these organizations protest without a sound basis? Should they not recognize their role as representatives of the legal community at large, rather than merely serving the interests of a few judges? The crux of the matter is not a legal issue, nor is it about judicial independence.
Ultimately, it concerns a limited number of judges who may perceive their chances of ascension to Chief Justice as jeopardized. Is it truly the responsibility of the Bar to advocate for a select few based on dubious allegations?
The writer is a freelance columnist.