Judge Transfer Process Subject to Full Procedure, Not Solely President’s Discretion: Supreme Court

ISLAMABAD: During the hearing of the judge transfer and seniority case, Justice Muhammad Ali Mazhar, heading a five-member constitutional bench, remarked that while the President holds the authority to approve a judge’s transfer, the process is not unilateral and involves a complete procedural framework. He stated that if any of the involved parties—the judge in question, the chief justices of the respective high courts, or the Chief Justice of Pakistan—refuse consent, the transfer process comes to a halt.
Justice Mazhar emphasized that judicial precedents clearly state that a judge’s seniority is to be counted from the date of appointment. The bench also included Justice Naeem Akhtar Afghan among others.
During the proceedings, the Advocate General of Punjab submitted a miscellaneous petition, claiming they were not a party to the case and were only issued a notice under Article 27-A. Justice Mazhar responded that a 27-A notice is intended to bring someone into the case as a party and questioned the AG’s lack of awareness regarding its importance, noting that since the Registrar of Lahore High Court had submitted comments, the Punjab government had become a key party in the matter.
A legal debate ensued over Article 48(1) of the Constitution, with the lawyer arguing that the President must act on the Prime Minister’s advice, which is itself subject to Cabinet approval. Justice Afghan countered that the article is often misunderstood and clarified the distinction between the President’s powers and the manner in which those powers are executed.
The lawyer cited the Qazi Faez Isa case, suggesting that the President must apply his own mind in certain decisions. Justice Mazhar responded with rhetorical questions, asking whether the President could refuse to act on a recommendation by the Supreme Judicial Council to remove a judge, or if he could deny an appointment recommended by the Judicial Commission. He stressed that such scenarios are not permissible under the constitutional framework.
Justice Mazhar further reiterated that without the consent of the judge being transferred, or the chief justices of either the transferring or receiving high court, or the Chief Justice of Pakistan, the transfer process cannot proceed. He cautioned that interpreting constitutional procedures loosely could lead to claims that the Supreme Court is overstepping its boundaries or amending the Constitution.
He also referenced the 1985 inclusion of terms like “Prime Minister” and “Cabinet” into the Constitution and noted instances, such as the Army Chief extension case, where the Supreme Court allowed Parliament time to legislate within a defined period.