Legal Subversion in Pakistan: the Government’s War on the Islamabad High Court

Hassan Zaheer

Centre for Strategic and Contemporary Research (CSCR), Islamabad

On January 31 2025, the legal landscape of Pakistan was jolted by a letter bearing the signatures of five justices of the capital territory’s High Court, including the senior judges Mohsin Akhtar Kayani and Tariq Mehmood Jahangiri. The letter was severely critical of the reported attempt by the government to import a judge from another high court and install them as the Chief Justice (CJ) of the Islamabad High Court (IHC). In their letter, the judges outlined a set of laws and conventions that, first, limit the government from appointing a transferred judge with continuation of oath, and second, inhibit it from making that judge the CJ of the high court to which he or she is transferred. Disregarding these established conventions, the letter warned, would be tantamount to a “fraud with the constitution.”

This blog examines the government’s attempt to play constitutional hardball with established conventions to offset the hierarchy of seniority and appoint its favored judge as CJ to co-opt and court pack the defiant IHC.

A History of Simmering Tensions

The clash between the IHC and the federal government has been in the making since 2024. In late March 2024, the same IHC judges wrote a letter to the Supreme Judicial Council (SJC, comprising Pakistan’s CJ as well as two senior judges of the Supreme Court (SC) and two senior judges of High Courts) providing details of alleged coercion by the intelligence agencies against the IHC judges and their relatives to attain favorable judicial outcomes. Consequently, the then CJ of Pakistan initiated suo motu proceedings in the SC relating to the letter, but since then the case has been adjourned till the same bench is available to hear the case, leaving its fate unknown. However, notwithstanding the intimidation, the IHC judges continued to  restrain state impunity in cases such as enforced disappearances, state surveillance, and suppression of the opposition.

Another issue is the elevation of the IHC CJ Aamer Farooq to the SC, leaving the position vacant. In his tenure as CJ of the IHC, Justice Farooq appears to have sided with the executive institutions. His elevation to the SC happened on February 14, 2025 – but was likely foreseen in late January when the letter mentioned in the introduction to this blog post was sent. Given that substantial administrative power rests in CJ’s office, which CJ Farooq used to suspend a majority judgment, it can be assumed that the government intends an authoritarian use of the CJ office by now elevating a judge of its choice as CJ of the IHC to take the place now vacated by CJ Farooq. Moreover, when the Judicial Commission of Pakistan (JCP) considers the nomination of judges to the IHC under Article 175(A), the CJ of the IHC is also a member of the JCP along with a senior puisne judge of the same court. Therefore, co-optation of these positions is crucial for court packing in the IHC.

Furthermore, owning to jurisdictional and geographical proximity to the legislative and other branches of the government in the capital territory, the IHC is the first legal avenue to challenge any perceived state arbitrariness and determine the constitutionality of legislation. The IHC has been consciously proactive in protecting and preserving the constitutional rights of citizens while maintaining the independence of the judiciary and its integrity in the public eye.

Law and Contortions

Given this bad blood, the government is now attempting state capture of the defiant IHC, with its first act being to transfer a judge of its choice who can be quickly elevated to the CJ position. For its autocratic move, the government is relying on Article 200 of the Constitution which stipulates that a judge can be transferred from one HC to another by the President with the judge’s consent and following consultation with the CJ of Pakistan and the CJs of both HCs. However, this course runs into legal complications and completely disregards established norms.

Currently, there are two sets of judicial norms dictating the process of appointments at HCs: constitutional and administrative. As just noted, Article 200 of the Constitution outlines the process for the transfer of HC judges. However, the same article does not conceive of the judiciary as a unified federal service. This means that each of the HCs is autonomous and independent and works under a scheme of federalism. This article is in tune with Article 194 and the third schedule of the Constitution which stipulates the oath of office for the HC judges with some distinction in text for each HC.

Under federalism, it is established constitutional practice in the higher judiciary (HCs and SC) that if a judge is elevated from one position to another within a court or transferred from one court to another court then the oath of office shall be taken afresh, as the courts in the higher judiciary are autonomous. Therefore, the taking of the new oath results in the discontinuity of the seniority of the judge in the transferred court. This is also why when a judge is elevated to the SC, they make a new oath. Moreover, in a previous case concerning a dispute over the seniority of Lahore HC judges, the SC explained in its judgment that the final stage in the appointment process of a judge is oath-taking, meaning that their service and seniority will start from that point onward. From reading this judgment together with the established practice, it can be asserted that judges need to take a new oath when elevated/transferred and this new oath shall set a new clock on their seniority in the elevated/transferred court because Article 194 of the Constitution is silent on the continuity of seniority when a judge is transferred from one HC to another.

Additionally, Article 175(A) of the Constitution establishes the JCP which makes the administrative rules regulating judicial appointments and also (as noted above) nominates the judges which the President then appoints. Those rules stipulate that the CJ of the HC shall be appointed from the pool of the three most senior judges of that HC. By transferring a judge of its choice without requiring that the judge take a new oath, the government is seeking to manipulate this pool of seniority.

Legal Conventions and Raw Power

In summary, the service of a judge begins with the taking of the oath of the relevant HC. If a judge is transferred between HCs, their term of service (for the purposes of seniority) starts anew with a new oath when the judge is transferred into the new HC. The transferred judge shall start at the bottom of the hierarchy of seniority in the transferred HC.

Notwithstanding these norms, the government forced its will onto the IHC by transferring three judges from their respective HCs and appointing them at the IHC by invoking Article 200 over the first weekend of February 2025. The government did not administer a new oath for the new judges. Of particular importance is the transfer of Justice Sarfraz Dogar without administration of a new oath, because his appointment, without discontinuation by way of a new oath, dramatically alters the hierarchy of seniority in the IHC.

In an interesting twist, a representation was filed by the same five justices who sent the letter mentioned in the introduction to this blog post. In his final judgment before his elevation to the SC, CJ IHC Farooq ruled that transfer does not affect the seniority of judges in the transferred court, drawing on an example from India (whose oath of judges, as he admitted himself in the judgment, is different from Pakistan). He also cited a judgment relating to oath of additional judges in Pakistan and incorrectly treated that oath as analogous with that of a HC judge without accounting for the differences, e.g. additional judges are promoted within the same court while transferred ones come from a different court. This arbitrarily cleared the path to appoint Justice Dogar as Acting IHC CJ, who took the oath on February 14. As I noted above, Justice Dogar was only transferred to the IHC from the Lahore HC on February 1, and did not take a new oath of office. Even more interesting is that the notification announcing Dogar as Acting CJ IHC did not add senior puisne to his name, such that even after former CJ IHC Farooq’s final judgment the clarity over seniority is still contested.

Subversion by Law

By invoking a particular constitutional clause while negating the rest of the body of laws, precedent, and conventions around the transfer of HC justices and its normal impact on judicial hierarchy, the government is signaling to the defiant IHC judges that it is ready to play constitutional hardball and sabotage their Court by manipulating the same Constitution that empowers the Court. After appointing its chosen judge as acting CJ IHC, the next natural step is probably court packing the IHC with its favored judges. The first step in this phase has arguably already been taken with the passing of the Islamabad High Court (Amendment) Act 2024, which increased the strength of judges from nine to twelve. In Pakistan, the government is adopting classic autocratic methodologies to undermine judicial independence and maximize executive discretion.

Hassan Zaheer is a Non-Resident Research Associate at the Centre for Strategic and Contemporary Research (CSCR), Islamabad. He is also a Teaching Assistant at the Department of Sociology, University of Karachi.

Suggested Citation: Hassan Zaheer, ‘Legal Subversion in Pakistan: the Government’s War on the Islamabad High Court’ IACL-AIDC Blog (20 February 2025) Legal Subversion in Pakistan: the Government’s War on the Islamabad High Court — IACL-IADC Blog