The president of Pakistan does indeed have the authority to transfer a judge, as outlined in Article 200 of the Constitution.This provision grants the president the power to make such transfers in accordance with the law and judicial requirements.
While this might raise concerns or prompt protests in some circles, it is important to recognize that this action is rooted in the constitutional framework of the country.
The provisions for transferring judges are designed to ensure the judiciary’s efficiency and integrity. Critics may view these transfers as politically motivated or as a means to exert influence over the judicial system.
However, from a legal standpoint, the president’s capacity to transfer judges is a legitimate exercise of power intended to maintain an effective judicial administration.
The recent transfer of three judges to the Islamabad High Court by the President has ignited protests within the legal community, prompting significant discussion about the legitimacy of these actions. A critical inquiry arises: Is there a constitutional or legal issue associated with the President’s decision to transfer these judges?
The answer is unequivocal: the transfers are both constitutional and lawful.
To fully grasp the procedure for appointing judges to the Islamabad High Court, it is essential to reference the Islamabad High Court Act of 2010. This Act provides that the High Court comprises a Chief Justice and twelve judges who are appointed from various provinces and territories, in accordance with the requirements of the Constitution.
The President’s authority to transfer judges between High Courts is articulated in Article 200 of the Constitution. This article states that two key conditions must be satisfied: first, the consent of the judge being transferred, and second, prior consultation with both the Chief Justice of Pakistan and the Chief Justices of the respective High Courts involved. In the recent case of the three judges, both conditions have been thoroughly fulfilled.
Each of the judges involved consented to their respective transfers, and the appropriate consultations were conducted beforehand, ensuring compliance with constitutional requirements.
Historically, the Islamabad High Court has seen similar transfers, creating a precedent that supports the legality of these actions.
For instance, Justice Sardar Muhammad Aslam was transferred from the Lahore High Court to the Islamabad High Court in 2008. Subsequently, notable judges such as Justice M. Bilal Khan and Justice Iqbal Hameed-ur-Rehman were also transferred; both judges later served as Chief Justices of the Islamabad High Court after their transfers.
