Judge's consent constitutional requirement for transfers in Pakistan: Supreme Court
Pakistan
Hamid Khan criticised the unusual haste shown in the recent transfers at the Islamabad HC
ISLAMABAD (Dunya News) – During the hearing of petitions challenging the transfer and seniority of judges, Justice Muhammad Ali Mazhar remarked that in Pakistan, a judge’s consent is a constitutional requirement for transfer, unlike in India, where no such consent is needed.
A five-member constitutional bench of the Supreme Court, headed by Justice Mazhar, heard the case on judicial transfers.
Senior lawyer Hamid Khan argued that multiple legal aspects must be considered before transferring judges from high courts. He criticised the unusual haste shown in the recent transfers at the Islamabad High Court.
Justice Mazhar pointed out that in India, judicial transfers happen after consultation with the Chief Justice, without requiring the judge’s agreement. “In Pakistan, however, consent is a constitutional obligation,” he emphasised.
Justice Naeem Akhtar Afghan added that unlike India, where there is a unified seniority system among high court judges, Pakistan lacks such a framework.
Justice Shakeel Ahmed noted that in India, transfers do not affect seniority because of the uniform seniority list.
Hamid Khan further argued that there was no meaningful consultation by the Chief Justice of Pakistan during the transfer process. Justice Afghan clarified that the issue was not just consultation, but the necessity of obtaining consent.
Khan alleged that the transfer process was used to bring in Justice Sarfraz Dogar, while the transfer of two other judges was merely symbolic, suggesting misuse of Article 200 of the constitution.
Idrees Ashraf, representing the former prime minister Imran Khan, stated that the notification lacked a time frame for the judge transfers and warned that transferring judges could create inequality among judges within the same high court.
Justice Mazhar questioned whether the transfer issue should be evaluated under Article 25 (equality before the law) and asked, “If the transfer was limited to two years, would that satisfy you? The real issue here is seniority.”
The court adjourned the hearing until 9:30 AM tomorrow (Wednesday), with further arguments expected from PTI’s legal counsel.
