ISLAMABAD: The Supreme Court has held that Article 200 of the Constitution is a valid, self-contained constitutional mechanism for transferring high court judges, (permanently or temporarily) and its invocation in the present case does not violate or subvert Article 175A by any means.
A five-member Constitutional Bench of the Supreme Court, headed by Justice Muhammad Ali Mazhar, announced detailed judgements on the identical petitions filed by five judges of the Islamabad High Court (IHC) against such transfer of judges as well as the seniority issue of the judges. Other members of the bench were Justice Naeem Akhter Afghan, Justice Shahid Bilal Hassan, Justice Salahuddin Panhwar and Justice Shakeel Ahmad.
The 55-page detailed judgement authored by Justice Mazhar held that the two provisions neither overlap nor override each other, nor is there any disharmony or dissonance amongst them which needs to be reconciled or resolved.
In its detailed judgement, the court, while referring to constitutional requirements of consent and consultation, held that a “four tier formula” is encapsulated i.e. (i) the consent of the judge concerned; (ii) consultation with the Chief Justice of Pakistan; (iii) consultation with the chief justice of the high court from which the judge is to be transferred; and (iv) consultation with the chief justice of the high court to which the judge is to be transferred.
The court declared that the requirement that no judge will be transferred without his consent is an emphatic recognition of a judge’s personal and professional stakes in his posting.
“It acknowledges that transferring a judge is not a trivial matter; it uproots him from familiar surroundings, possibly compels relocation of family, changes his pool of cases and lawyers, and might affect his chances for future elevation,” said the judgement. “Thus, the Constitution grants him first choice or first right of refusal. If he refuses, the matter ends forthwith at the very initial stage,” the court held, adding that there was no complaint that judges were transferred without their consent or volition. The court noted that the next tier of protection is the consultation with the CJP who, according to the record, in principle, agreed to the proposal of transferring three judges to the IHC.
“In fact, the initiative was discussed between the Law Ministry and the CJP, and the consent of judges was procured subsequently,” it said, adding that the CJP’s consent is the linchpin, being paterfamilias of the judicial family.
Regarding the chief justice of the donor high courts (LHC, SHC, BHC), the court noted that the record indicates they were informed and their views sought, adding that none of them raised any objection; evidently, no qualms or reservations were voiced during the consultation process.
“If we look into Article 222 of the Constitution of India, it also empowers the president to transfer a judge from one high court to another after consulting the Chief Justice of India but the consent of the judge being transferred is not a requirement for either initial or subsequent transfers while in our Article 200, a foolproof and watertight procedure is provided to be complied with before issuing transfer notification by the president,” the judgement said.
“The bottom line in our thoughtful consideration is that the prerequisites and due diligence phases encapsulated under Article 200 were duly complied with in letter and spirit”, the court held but added that yet again, the power of transfer by the president is not unregulated or unbridled but structured on a four-tier formula. “Hence, for all intents and purposes, it is resonated without any possibility of doubt, that in the inbuilt procedure and mechanism, the right of rejection or primacy/ dominance is within the strict sphere and realm of judiciary and not within the domain or province of executives,” the court held. The court noted that the Judicial Commission of Pakistan (JCP) secretary also filed the reply/ concise statement vide CMA 2229/2025 in Const P 22/2025 in which it is clearly submitted that the mandate of JCP under Article 175A of the Constitution is a constitutional body which is primarily tasked with the appointment of judges to the Supreme Court of Pakistan, high courts and Federal Shariat Court and has nothing to do with the transfers made in exercise of powers under Article 200 of the Constitution.
“Had the framers of Constitution intended to subsume the transfer of judges from one high court to another entirely under the JCP regime or deliberation, they would either have repealed Article 200 in the 18th Amendment or included language in Article 175A to govern transfers also,” said the judgement.
The court, however, held that substratum of Article 200 still remains unchanged which demonstrates the intention of framers of Constitution manifestly that neither they aspired to vest such powers in the JCP, nor did they amend or dilute the exactitudes of Article 200 of the Constitution.
Meanwhile, Justice Panhwar in his separate detailed reasons held that the transfer of judges from provincial high courts to the IHC under Article 200 of the Constitution is constitutionally valid.
The judge noted that the requisite conditions, including the consent of the judges concerned and consultation with the CJP and the chief justices of the relevant high courts, have been duly satisfied. “These transfers have been made in the public interest and are not tainted by any extraneous consideration,” the judge held, adding that a transfer under Article 200 is not a fresh appointment; it constitutes a reassignment within the judicial cadre.
Consequently, Justice Panhwar held, a judge who has already taken the constitutional oath under Article 194 is not required to take a fresh oath upon transfer to another high court.
